National Labor Relations Board v. Local 825, International Union of Operating Engineers, AFL-CIO

PETITIONER:National Labor Relations Board
RESPONDENT:Local 825, International Union of Operating Engineers, AFL-CIO
LOCATION:Edward Coolidge’s Home

DOCKET NO.: 40
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 400 US 297 (1971)
ARGUED: Nov 18, 1970
DECIDED: Jan 12, 1971

Facts of the case

Question

Audio Transcription for Oral Argument – November 18, 1970 in National Labor Relations Board v. Local 825, International Union of Operating Engineers, AFL-CIO

Warren E. Burger:

We’ll hear arguments next in number 40, National Labor Relations Board against the International Union of Operating Engineers.

Mr. Ordman, you may proceed whenever you’re ready.

Arnold Ordman:

Thank you.

Mr. Chief Justice and may it please the Court.

These two cases consolidated here are here on writs of certiorari to the Court of Appeals for the Third Circuit.

In broad terms, the questions presented in both these cases is whether the Union, Local 825, of the Operating Engineers violated Section 8 (b) 4 (b) of the National Labor Relations Act in the so-called secondary boycott provision by exerting coercive pressures upon neutral employers in support of its dispute with the primary employer, the White Construction Company.

Now, that question can be further refined.

All parties and the Board and the Court below are in agreement here that the Union did exert coercive pressures as defined by Section 8 (b) 4 (b) upon neutral employers.

Now, that statutory section further requires, for purposes relevant here, that such coercive conduct have, as an object, forcing or requiring an employer to seize doing business with any other person.

Now, this is the pivotal issue in the case.

The Board found that the Union’s coercive conduct had cessation of business as it read the statute, in the statutory sense, as an object of its conduct and the Board, therefore, found a violation of Section 8 (b) 4 (b).

The Court below disagreed.

Unlike the Board and unlike other Courts of Appeals which have considered this issue, the Court below reads the language in the statute quite literally.

On the basis of that literal reading, the Court below held that the proof was insufficient to prove that the Union had an object to– had a “seize doing business” object because the Union did not, as the Court saw the case, ask for a total cessation of business.

Now, the underlying facts on at issue, the instant labor dispute arose at a construction site in Oyster Creek, New Jersey where a Burns & Roe, Inc., a general contractor, was building a $68-Billion nuclear power plant for the Jersey Central Power and Light Company.

Burns & Roe, the general contractor in charge of this project, had no employees of its own.

It delegated all the– no construction workers.

It delegated all the construction work to three subcontractors, the White Construction Company, the Chicago Bridge, and– Iron Company, and the Poirier & McLane Corporation.

Now, all these three subcontractors had, among their employees, members of the Local 825 Operating Engineers Union.

Local 825 had contracts with two of the subcontractors, Chicago Bridge and Poirier.

It had no collective bargaining agreement with either Burns, the general contractor, or with the White construction company.

Now, White’s job, one of the three subcontractors, its job under its subcontractor was to build this nuclear power plant, to create the reactor building for the nuclear power plant, and White’s equipment included, among other things, a piece of equipment known as an electrical welding machine.

And, as soon as White got the subcontract, he assigned the operation of this electrical welding machine, including– starting on stopping the machine to employees of his who were members of the Iron Workers Union and Local 825, the Operating Engineers Union, who wanted that work and urged upon White that employees of White who were members of Local 825 of Operating Engineers be given the job of pushing the buttons which started and stopped the welding machine.

Now, Local 825, as I pointed out, didn’t have contracts with White, this subcontractor, or with the general contractor but, in support of its demand, they presented profit agreements to White and to Burns.

As– in effect, those agreements would commit White, the subcontractor, and the general contractor to give all power equipment including specifically welding machines and give that jurisdiction to the operating engineers.

Now, these agreements would not only have bound the signatory, White, who was doing that work, it also bound subcontractors of the signatory so that Burns & Roe, the general contractor, would have been bound to apply that subcontract to White who was a subcontractor.

Now, neither White nor Burns agreed to sign or yielded to this pressure to sign the agreements.

Now, while this dispute was going on, since all the parties involved had agreed that disputes of this kind, really a jurisdictional dispute, should be submitted to the National Joint Board for the Settlement of Jurisdictional Disputes.

The dispute was submitted around October 6th and, within a couple of weeks, the National Joint Board for the Settlement of– I think it used to be called the Dunlop Board, settled this dispute and decided in favor of the Iron Workers to whom White had given the work.

But, the Operating Engineers weren’t satisfied.

Arnold Ordman:

They didn’t submit.

They refused to comply with that submission, with that determination of the Joint Board and they persisted in their efforts to regain the work.

Now, I’m– just to telescope the fact just a little bit throughout this whole period before, during, and after the Joint Board submission.

Local 825 engaged in coercive efforts, this is agreed, engaged in coercive efforts by threats of work stoppages and by work stoppages to compel White to change its work assignment.

Now, White, of course, who was doing the work in– who was the employer who was doing the work in question and Local 825, so long as it observed unlawful efforts including, among other things, Section 8 (b) 4 (d), had a perfect right to try to get this work.

But, the fact is that Local 825 didn’t confine itself to lawful efforts.

Not only did it use coercive pressures against White, the employer directly involved, the primary employer, it also used coercive pressures against the general contractor Burns, against the two other subcontractors Chicago and Poirier as a means to getting White to comply with its demands.

Now, Burns, Chicago, and Poirier had nothing to do with the assignment of White’s work.

White was the only, and they had no authority with respect to the assignment of White’s employees.

Now, on this state of the record, the Board found and the Court below agreed that this was a violation of Section 8 (b) 4 (d) of the Act which is a jurisdictional disputes provision, but the Board further found that insofar as the Union exerted coercive pressures on Burns, Chicago, and Poirier who were neutrals in this dispute over– because of the workers on dispute, the Union also violated Section 8 (b) 4 (b) of the Act since an additional object of the Union’s pressure against the neutrals was to cause a disruption of business among the various employers at the job site.

In the Board’s view, such an object, in the Board’s language, although something less than a total cancellation of business constitutes a “seize doing business” object within the meaning of Section 8 (b) 4 (b).

Now, there’s no quarrel here about the jurisdictional dispute finding that’s not in– challenged, but very much an issue is the propriety of the Board’s Section 8 (b) 4 (b) finding.

What form do the Union activities take against the other two contractors?

Arnold Ordman:

There were– for one thing, they asked White, the– Burns, rather, the general contractor, to sign a contract which would’ve bund the general contractor and his subcontractors to give this work to Operating Engineers.

They told him that unless he signed the contract there would be a work stoppage.

There was a work stoppage.

They told the other subcontractors unless Operating Engineers got the work, there would be work stoppages, and there were work stoppages.

And, as a result of which, Operating Engineers employed by the other two subs went off the job.

These were the pressures.

Incidentally, the Court below agrees that these kind of pressures, the threats of work stoppages and work stoppages fell within the statutory disagreement– fell within the statutory definition.

That finding isn’t challenged her by any party.

Now, the Court below, like the trial examiner in the Board proceeding, gave the statutory words “to seize doing business” a literal reading, in our view, an overly literal reading.

An object of seizing doing business, to the Court below, meant a total and complete cessation of business and intent to cause a disruption or successive disruptions as here, in the Court’s view, was not enough.

According to– the Court below held that the statutory criterion for the finding of a violation, namely the object test, was not met.

This was not, the Court below thought, the kind of classical boycott, secondary boycott, which Congress was after.

Now, our position is the Court below erred.

I suppose much could be made of the fact, if Your Honors please, $68-million project was repeatedly interrupted by a fight as to who is to push a button on an electrical welding machine, but I don’t want to make light of it.

This case, like the National Woodwork, like others this Court has before it reflects the deep and really the understandable concern of Unions who are trying to preserve their job opportunities and their job security in the face of automation and increasing technology.

This Court has talked about it often and lucidly in the National Woodwork case among others.

Insofar as the Union sought to preserve its work opportunity for the employees it represented and insofar as it used lawful efforts, it was entitled to protection.

Arnold Ordman:

Our position here, however, is that the Union went beyond lawful grounds.

We submit that even if the Court below was right and that the only possible reading of “seize doing business” is a total cessation of business, we believe the Court erred on this regard on the side of literalism and we think a few basic postulates established by this Court confirm our position.

Now, first, the basic thrust of the so-called secondary boycott provision, that’s 8 (b) 4 (b), formally 8 (b) 4 (a), is that it is designed to protect unoffending employers from involvement pressures in controversies not their own.

That was the Congressional intent.

It’s documented in the legislative history, and this Court has unim– una– uniformly confirmed that in its own decisions as far back as Denver Building in 341 US and at least as recently as National Woodwork in 386 US.

No one in this case, no one even suggests that Burns, the general contractor, and Chicago Bridge, and Poirier were anything other than neutrals in the dispute between White and Local 825.

No one but White could assign the work that was in question.

White was the primary employer, and the purpose and effect of the Union’s pressures on the other three companies was to involve them in a dispute which was no part of their– not their own, no part of their problem.

Now, the second proposition, a literal reading of Section 8 (b) 4 (b) like its companion provision Section 8 (e) is, in our view and we believe you have so have, a literal reading of those sections is an inadequate basis for determining the statutory reach.

It would be an imposition on your time, if Your Honors please, and my time is also limited, to labor the point that the statutory provisions in Section 8 (b) 4 (b) and Section 8 (e) were the product of Congressional conflict and Congressional compromise, and that this conflict and compromise are reflected in statutory language which, in fact to understate the matter, is somewhat lacking in precision.

I think it was this lack of language precision which prompted, I think, Mr. Justice Harlan to make the comment in National Woodwork which was a split opinion and, Mr. Justice Harlan, you commented that both sides of today’s division in the Court agreed that, in pursuing the search for the true intent of Congress, we should not stop with the language of the statute itself and must look beneath its surface to the legislative history.

We submit the Court below rested on the naked language of the statute and failed to carry out the mandate.

Now, third, a proscribed object such as the statute says that one of them is seize doing business, need not be the only or even the predominant object to bring conduct within the ban of Section 8 (b) 4 (b).

The Court below made much of the fact that, after all, the real goal of the Union here in all its activities against all the employers was not to bring about a permanent cessation of business.

What they wanted was the work that White wasn’t giving to them, and that the real object, the real goal was to get the neutrals, the secondaries to pressure the primary into hiring Operating Engineers.

That was the burden of the opinion of the Court below, and we concede it.

The Board so found, and the finding was the crux of a Section 8 (b) 4 (b) holding, but Denver Building again was the first of a long line of cases establishing that it is efficient, as the Board here found, if a cessation of business was an additional object, an object of the Union’s conduct.

And this Court, again, pointed out in these two cases that come to mind immediately, that Congress deliberately substituted the words “an object,” for the original bill which was condemned when you did– when you exerted coercive pressures for a purpose.

They thought that was too limited and substituted the words “an object” and, plainly, an “object of the Union’s conduct” here was to bring out about the kind of disruptions of business, the kind of work stoppages, such work stoppages as would be appropriate or necessary to achieve its goal either of obtaining that work from White or conceivably from a more compliant subcontractor.

Do you think the Board’s view on whether or not this does or does not come under Section 8 (b) 4 (b) have any difference?

Arnold Ordman:

Yes, I believe because the Board has worked in this area.

Frankly, if it has expertise, it has expertise in the secondary boycott area.

As this Court is aware, we’ve been before this Court any number of times in this area and I think the Board’s expertise is entitled to consider this.

Well, I was just wondering.

This is a pure question of law, isn’t it, as to what the statute–

Arnold Ordman:

Yes, I believe it is a pure question of law and I don’t– and, of course, the Board’s position– the Board’s view of this does not overbear what the Court can say and, of course, the Board must defer to the Court on the question of law but, our submission is, I probably meant to say that the Board’s view of the statute, plus the legislative history, I think, is entitled to consideration not controlling exactly, but certainly entitled to consideration.

You were talking primarily about the legislative history of the–

Arnold Ordman:

8 (b) 4 (b)?

The Taft-Hartley Act in 1947.

Arnold Ordman:

And on the–

And on the 1959

Arnold Ordman:

On the 1959, yes.

Both?

Arnold Ordman:

Both.

Denver Building was decided before the 1959 amendment.

Arnold Ordman:

Yes, but National Woodwork was decided after.

Thereafter.

Arnold Ordman:

And, Jacksonville Terminal which is also based here was decided after, and–

You think the–

Arnold Ordman:

That is the same general content.

You think the amendments that Congress made to this legislation in 1959 have any real relevance to the question here or is it–

Arnold Ordman:

Yes, I think they do.

You would’ve been on the same side of the case between 1947 and 1959.

Arnold Ordman:

I think the decision would be the same.

Congress did state that it was making an effort in 1959 to–

Warren E. Burger:

Poles.

Arnold Ordman:

To Blue Poles.

On the other hand, at the same time, it interpolated that proviso which indicated it wanted to protect primary– that it wanted to protect primary picketing but, I believe, so far as this case is concerned, the result would be the same in both, under both versions in 1947 or–

So the inanimate of the language has no real–

Arnold Ordman:

Has no real significance here.

Bearing on this.

Arnold Ordman:

I think it just solidifies that it does contain the primary proviso protecting activity.

On the other hand, that was an interpretation which the Act had been given before that proviso was had.

Warren E. Burger:

I’m a little puzzled.

Perhaps you can clear it up.

With your response to Mr. Justice Harlan that this is a pure question of law, that the Board, in applying this statute, had to take into account the factual situation and the purpose of the Act and the impact of the secondary boycott in this whole situation, did it not?

Arnold Ordman:

Of course, the pure question of law–

Warren E. Burger:

You can’ really isolate the statute–

Arnold Ordman:

No.

Warren E. Burger:

And the impact, can you?

Arnold Ordman:

The– no, we do not.

The pure question of law, I submit, is the only– is the pivotal issue in this case, is whether “to seize doing business” must be read as a naked statutory language of whether we must look back to this legislative history to determine the real meaning of that language.

This is the place, I think, where the Board and the Courts are real– the Board and the Court below really divide.

The Court looked at the that language, as the statute wrote it, to seize doing business, I might almost suggest in a dictionary sense rather than looking forward and looking back at the legislative history to see what Congress was really after.

Of course, once you decide the test then, of course, the facts– you then must appraise the facts to see whether it meets that test or the meaning that that language meant to which we must–

Hugo L. Black:

Right, there’s no dispute between the facts.

Arnold Ordman:

That is correct, and that’s why I say it’s not a question of act– of the actual occurrences.

There’s no dispute between the Court and the Board as to what actually happened.

Byron R. White:

But, Mr. Ordman, I thought one of your positions was that even if the statutory language means what the Court below says it means.

Arnold Ordman:

Yes, that is the point–

Byron R. White:

And that the facts of this case satisfy that meaning?

Arnold Ordman:

Yes, that is the point I wish to make.

First, I think a broad reading certainly does pre– I think we prevail even on a narrow meaning, and I’d like to touch on that quickly.

Byron R. White:

Probably, aren’t you interested in that?

Arnold Ordman:

Yes.

Byron R. White:

In the disposition?

Arnold Ordman:

No.

The Court below made much of the fact that the Union didn’t admit, they didn’t say it wanted a total cessation of business.

I might make reference to a footnote in the Board decision that in the– to the Board decision.

The fact of the matter is, and it’s undisputed here, the Union came to White– to Burns, the general contractor who had no employees.

He had asked him to sign a contract which would not only bind him to give this kind of work to– electrical welding machine work to Operating Engineers, it would also bind his subcontractors.

Now, the Union asked the general contractor to sign that contract and said “if you don’t, you’ll have a work stoppage,” and there was.

Now, if the general contractor had signed that work stop– that agreement, White either would have– the subcontractor, either would have to comply and achieve the Union’s purpose or, under his contract obligation, the general contractor would have to say “get off the project.”

Now, it seems to me in that sense alone, moreover, we suggest that–

William J. Brennan, Jr.:

Is this the course the Board took?

Arnold Ordman:

The Board–

William J. Brennan, Jr.:

The Board–

Arnold Ordman:

The Board took a–

William J. Brennan, Jr.:

The Board cited the case on this basis, didn’t it?

Arnold Ordman:

The Board took a broader view, but it cites this fact, and it did decide this case on the facts and this very submission of the contract, and the contract is noted in footnote 6 of the Board– In footnote of the Board decision.

Arnold Ordman:

I think you’ll find it on page 6of the appendix.

Page 6 of the appendix, footnote 5, the contracts of White and Burns provided for respondent’s members to perform the disputed work and said they couldn’t subcontract any work covered by the agreement unless the subcontractor agreed in writing to perform all the work.

Besides that, we submit that the fact is that the Union did bring about two successive work stoppages against the neutrals which, in it of themselves, can be read as cessations of business.

The fact is that the Union sought here to impose a wholly new working arrangement.

In other words, it says seize doing business with White, the subcontractor, if he’s going to do business assigning work to whom he pleases.

You can only work with him under a new method which we prescribe, namely that you hire Operating Engineers to do this work.

And, incidentally, the suggestion is that the Board didn’t spell this out either because the Board talked only about something less than a total cancellation of business is seize doing business.

We believe that is right, but the Board, on these other theories and I believe the amicus brief of the AFL-CIO didn’t spell out its rationale.

The Board cited the Local 3IVW case in its decision in support of its present holding, in which precisely this rationale is spelled out, and I don’t reach in re as requiring the Board having cited a case which makes such a holding to repeat the rationale of that case.

Now, I want to make one quick caveat.

I think it’s important.

Preliminarily, one, the Court below was concerned about the classical secondary boycott.

I really submit that this type of boycott we find in this case, the ultimate objection of the Union and there were a lot of objectives to get more members, that the type of boycott we’ve got in this case, which is typical of the many case we have which arise in the construction industry, might more nearly be described as a classical boycott as the one the Court below described.

Now, one very important caveat, we are confining this analysis to situations, whereas in the instant case, the thrust of the Union’s conduct is directed at secondary neutral employers.

We recognize that primary strikes and primary picketing which are protected have secondary impacts, and this Court has noted that again in International Rice Milling and in the National Woodwork case.

And, primary strikes are protected under the statutory scheme, notwithstanding, that they necessarily even have intended secondary impacts.

We recognize also, as a responded Union urges and the AFL-CIO urges, as amicus, argues, we recognize that Congress created no sweeping prohibition even of secondary conduct.

We don’t want to clinch on these limitations.

We limit ourselves to the case where the impact is purely and expressly on secondary employers.

Thank you.

Is it pertinent to inquire what the situation is now?

Arnold Ordman:

Yes, there was a contract bargaining dispute, Mr. Justice Harlan.

These people, both Burns and White, were part of a multi-employer contractual arrangement.

During this period, there was a fight they had gotten out of it.

Subsequently, the multi-employer arrangement was found valid by the Board and all these parties now are governed by a collective bargaining contract which disposes of this kind of dispute.

There was a temporary hiatus in the bargaining relationship between the subcontractor and the Union.

You mean all the differences were just composed?

Arnold Ordman:

I gather this project, this building, is completed.[Attempt to Laughter]

You what?

Arnold Ordman:

I gather the project is completed.

Arnold Ordman:

These incidents took place back in 1965.

This moots the case and I can’t?

Arnold Ordman:

No, Your Honor, the question still remains as to what is cessation of business and the object test.

Warren E. Burger:

Mr. Apruzzese.

Vincent J. Apruzzese:

Mr. Chief Justice and may it please the Court.

Justice Harlan, may I indicate that this project was Phase I of the Jersey Central Power and Lights Power Plant construction at that location.

They are still in the process of developing some permanent water discharge lines to this project, and Phase II is about to start within the next couple of months.

Moreover, the broad secondary relief that is outstanding against this Union in Third Circuit orders, which the Third Circuit has found this Union in contempt of continue and, consequently, this is a continuing question of significance not only in this dispute, but to the entire broad question of secondary conduct generally.

Hugo L. Black:

But if it’s not in this case, it is not a matter of acute controversy matter in this case.

Vincent J. Apruzzese:

No, it is a matter of acute controversy, Mr. Justice Black, with regard to conduct that may be considered secondary.

I think, perhaps what Mr. Ordman meant to suggest was that the underlying jurisdictional controversy with regard to electric welding machines has been resolved.

We have an affirmative decision on that by the Joint Board which is the equivalent of a 10K determination by the NLRB.

Consequently, that specific type of controversy is resolved, but the secondary boycott conduct of this Union, which it has continually engaged in over the years, is still important and it still is outstanding a broad Third Circuit Court injunction prohibiting– a permanent injunction prohibiting secondary conduct.

So that, the question involved here is most significant with regard to that outstanding secondary boycott order in other cases, which are cited in our brief, and for all future violations that come under the ambit of this section of the law.

Byron R. White:

But how will the Union be affected at this stage by either affirmance or reversal of the case below?

Vincent J. Apruzzese:

The Union will be affected, as will all Unions, in the whole area of the law, Mr. Justice White.

Byron R. White:

I know, but its interest in this project is gone.

Vincent J. Apruzzese:

Well as I indicated, Mr. Justice White, the power plant construction by Jersey Central Power and Light has various phases.

Byron R. White:

But this– but all the– the only remedy against the Unions is a seize and decease order, isn’t it?

Vincent J. Apruzzese:

Yes, Your Honor, that’s the only thing on appeal here.

Byron R. White:

And that will– seize and decease at that project, at that place?

Vincent J. Apruzzese:

No, the secondary boycott order is a very broad order.

It’s the broadest that can be issued by the Third Circuit Court or the Board.

It applies as against any employer, as yet unnamed employers, sir, because of the NLRB’s position that this Union had demonstrated a proclivity to violate the Act.

So, consequently, the NLRB orders outstanding against this Union are what we term broad orders.

They have been enforced by the Third Circuit and at least two cases, the United Engineers case quoted in our brief and a consent decree entered into by the Union in 1966 and, consequently, they are outstanding orders currently and we must, I would suggest, have an answer to this type of controversy in order to find out the efficacy of those outstanding orders.

William J. Brennan, Jr.:

Is there– what is it?

There’s a damage action or some kind in the secondary boycott cases?

Vincent J. Apruzzese:

No, sir.

There is no outstanding–

William J. Brennan, Jr.:

No, I say is– doesn’t the statute provide for a damage action for secondary–

Vincent J. Apruzzese:

Yes, the statute does provide Section 303 is–

William J. Brennan, Jr.:

Now, for Burns & Roe, if this is reversed, would they have such an action against this Union?

Vincent J. Apruzzese:

They could, independently of how this case is decided, Your Honor.

As I understand the law on the subject, a finding of a violation of 8 (b) 4 (b) is not res judicata on a Section 303 suit for damages which includes the identical language.

William J. Brennan, Jr.:

It may not be res judicata, but a bit rather important–

Vincent J. Apruzzese:

Well, I would say so, but there is–

William J. Brennan, Jr.:

Afterwards, you would have to bring an action against– for Burns, against this Union, if we reversed, wouldn’t you?[Attempt to Laughter]

Vincent J. Apruzzese:

Well, let me point out, sir, I have represented Burns & Roe since the inception of this matter.

No damage suit has been instated nor is one contemplated.

William J. Brennan, Jr.:

That wasn’t my question.

Vincent J. Apruzzese:

Yes, sir?

William J. Brennan, Jr.:

My question was, it would be helpful to such a damage suit if this were reversed, wouldn’t it?

Vincent J. Apruzzese:

I think it would be inadmissible in that damage suit, Your Honor.

Hugo L. Black:

Maybe inadmissible, but it certainly, as a legal proposition– I doubt if you–

Vincent J. Apruzzese:

Yes.

Hugo L. Black:

I doubt if you would miss citing the case.[Laughter]

Vincent J. Apruzzese:

That’s correct, sir.

As Mr. Ordman has pointed out, the cessation of business interpretation of the statute is at the heart of the Third Circuit opinion and I would submit that the Third Circuit was very conscious of its narrow interpretation of this language because, in its opinion, it alludes to and cites for comparison the Fifth Circuit decision in a Carpenter’s District Council of New Orleans which we have cited, and the Fifth Circuit, of course, adopts the Board ruling that something less than a total cancellation of business is a violation of the statute.

Provisionally, as I understand and read that decision in the Third Circuit, it would virtually make, as the Third Circuit has interpreted this statute, the evidentiary standard of demonstrating an unlawful object virtually impossible.

I think the Courts and the Board have held many times that it is the purpose of the conduct and not its effect.

There can be an unlawful inducement.

There can be unlawful thread with an improper object that does not meet with success.

However it is, nonetheless, unlawful, and I would point to the language of this Court in the General Electric case in which this Court said that, in the absence of admissions by the Union of an illegal intent, the nature of acts performed shows the intent.

It cannot be gain said, of course, that a Union hardly will step forward and admit illegal intent, but I think the Courts and the Board, over the years, have developed reasonable criteria and reasonable methods of finding out what this intent is and it is demonstrated by that citation adopted by this Court in General Electric.

It seems to me that in the development of our labor law, if we look to the pre-Norris-LaGuardia type of labor disputes, with the use of injunctive power that has been criticized in the development of our law, we then look to Norris-LaGuardia which endeavored to stop that type of abuse of judicial injunctive process.

Then, we have to have Taft-Hartley which, if the Court please, carved out certain conduct which was proscribed by Congress, subsequently, Landrum-Griffin.

I submit that the purpose in the development of all of this law was to confine the area of industrial conflict.

The purpose was to reduce or minimize the disruption of commerce.

In a same fashion, the Boy’s Market decision of this Court in June of this year endeavors to do that.

Vincent J. Apruzzese:

So that, consequently, we find the emphasis in the development of our labor law an effort to confine the conflict and I would submit that if the decision of the Third Circuit were adopted here, it would so enlarge the battle field as to undo the years of development of this law, the legislative history, the intent of Congress.

Indeed, we point out in our brief the Building Trade Unions have tried perennially to obtain a Common Situs Bill in Congress that would allow the very type of conduct engaged in here has turned back that effort each time and, consequently, the Third Circuit position, it seems to me, should be rejected.

The Union has available to it the collective bargaining– free collective bargaining process.

In that process, it has available to it arbitration.

The Joint Board for Settlement of Jurisdictional Disputes is a type of arbitration.

It has been so held the Union in this instance, as Mr. Ordman points out, rejected that procedure though bound by it, rejected the conclusion of that body though bound by it, and it was necessary to obtain injunctive relief for the enforcement of that type of award.

Moreover, not only did it reject the arbitration procedure and result it was bound by, but it did so by engaging in coercive activities against neutrals, not involved in the controversy.

Poirier & McLane had no dispute with the Union.

Chicago Bridge had no dispute with the Union.

Burns & Roe had no dispute with the Union.

Consequently, if we squarely recognize the realities of the construction industry, here, we see a $68-million project where 30 men operating engineers all refuse to work, leave their equipment and, by their refusal, bring to an absolute standstill a project employing some-300 men.

Obviously, the statute is designed not only to protect the rights of the neutral employers.

It was also intended to protect the rights of their employees.

This dislocation– this massive dislocation also causes injury to these other employees.

I would submit that there were only three alternatives available with regard to the Union conduct.

One of them was the parties could’ve remained adamant.

No one would’ve changed their stand and, perhaps, the project might not be completed.

In the absence of injunctive relief, the project would not have resumed, except for that injunctive relief in the manner that it was proceeding.

The other alternative was to terminate the contract of White Construction.

That is not as simple a thing as it sounds. Certainly, in sophisticated types of construction such as a nuclear plant, it is not a simple thing to switch horses, midstream.

There are all types of problems with regard to competence, personnel, planning, approval of drawings.

The other alternative, of course, was to exert this pressure until the Union had the White Construction Company bend to its will, and it seems to me that the reasonable course here dictates in what Congress intended to do was to deal with the normal type of dispute, the interdiction or, if you will, the disruption of business designed to put pressure on people who could bring about a change.

These are the neutrals that are to be protected.

The respondent’s brief relies upon two cases rather heavily, the Miller case and the Wed Nagle case.

With regard to Miller, it seems to me that that case is in opposite.

The Miller case, if we read the language of it clearly, indicates that that merely was an effort by a Union to tell a general contractor that if a painting subcontractor continued to resort to the use of spray-painting it would picket the job and clearly indicate that its dispute was with the primary.

That case did not involve secondary activity.

In that opinion, it was clearly pointed out that the superintendent of the general contractor admitted that the Union agent never specifically asked him to remove Miller from the job or take any other definitive action in regard to Miller.

We said that that case is in opposite.

With regard to Wed Nagle, Wed Nagle was a Seventh Circuit decision.

Vincent J. Apruzzese:

Wed Nagle was decided in 1958, I think as our brief cites, the Seventh Circuit has rejected that approach.

We cite the Pure Milk decision, which is a Seventh Circuit decision, decided in 1964 and I would call the Court’s particular attention to the italics in a quotation in our brief at page 26 in which the Seventh Circuit says “less than a total cessation of an existing business relationship is within the meaning of seize doing business.”

Consequently, we would submit that the Wood Neagle case is rejected authority.

Obviously, when a Union engages in this conduct, it may have several objects and we have cited the cases talking about those decisions which have immediate alternative conditional or ultimate objects.

The point that Mr. Ordman makes is quite right.

The legislative history shows clearly that the language of “the purpose of” was substituted with the language of “an object” and, consequently, the broader language has application.

With regard to the contention made by the respondents that 8 (b) 4 (d) is involved here and, therefore, we should not have an 8 (b) 4 (b) charge.

Needless to say, the 8 (b) 4 (b) Section, the secondary boycott section, involves mandatory injunctive powers as opposed to discretionary.

There’s a Section 303 suit that can be instituted by anyone who is injured by secondary conduct, irrespective of a contractual relationship which underscores Congress’ concern for neutrals and underscores its concern for prevention of a disruption of commerce.

Moreover, after a 10k award under NLRB procedures, an injunction may be dissolved, whereas in secondary boycott matters, the injunction becomes permanent.

This case, I would submit, is like the Denver Building Trades case.

We have the pressures brought to bear on a general and other subs to have White change its course, to have White change the method by which it was doing business.

This, indeed, was a longstanding dispute, has been a longstanding dispute between Local 825 and other employers.

There are cases, the Building Contractors case of 1957 quoted in our brief, the Moore Pipe decision in 1962, the Building Contractors again in 1964, and Moore Interaction in 1967.

All of these secondary boycott cases involved the welding machine and I would submit as well that there have been two contempts found by the Third Circuit with regard to violation of its order on secondary boycotts by this Union on welding machines.

In short, I would conclude that the nature of the construction industry is such that, without applying the sound principles of Denver Building Trades and all of the decision subsequent, it would unduly enlarge the battlefield and grant to construction Unions what they have not been able to obtain to the common situs legislation.

Warren E. Burger:

Do you– Mr. Aronson, if you’d like to finish today, you may.

Earl S. Aronson:

Thank you, Your Honor.

Mr. Chief Justice, Mr. Associate Justices, may it please the Court.

First, let me say, initially, it is a great honor for me to appear before this Court with such distinguished adversaries and in such splendor, and it is a day that I shall treasure for the rest of my life.

With respect to the arguments of counsel for both the National Labor Relations Board and for the charging parties, there is some agreement on behalf of the respondent Union.

There is more disagreement.

With respect to the basic facts which gave rise to the instant dispute, I am in agreement.

There is no question there were two work stoppages which the National Labor Relations Board, in its decision, found to be illegal.

With respect to the fact that all of the employers are neutral employers at the job site involved, I am in complete disagreement.

The National Labor Relations Act requires, with respect to Section 8 (b) 4 (b), that in addition to engaging in certain proscribed conduct, that conduct be engaged in for a certain specific objective.

As it relates to this case, that objective is to force one employer to seize doing business with another.

There is nothing in the statute itself or in the legislative history preceding the passage of the statute which sets forth that Congress desired to have a sweeping prohibition against all secondary activity.

This Court so recognizes this contention and in the General Electric Case, among others, it so stated that the only areas of prohibition are those areas which are set forth in the statute.

Now, if the Board is correct in its interpretation of the statute, it can state that in every secondary situation per se, there must be found an illegal seize doing business objective if the form of the coercive pressure takes that of a strike or a work stoppage.

Earl S. Aronson:

I submit that the form of the pressure is irrelevant.

It is the objective that the Union desires which leads to the ultimate conclusion, is this activity to force one employer to seize doing business with another?

This is a factual question, I submit to the Court, as to whether a Union engages in conduct for a proscribed objective.

The National Labor Relations Board in its decision reversed the trial examiner who held that there was not a saintlier of evidence in the record to establish that the local Union involved designed to seize anyone to seize doing business with anyone but, rather, all they wanted was that White assign a certain man, member of the local, to the operation and maintenance of a welding machine or, further, that White and/or Burns & Roe execute a collective bargaining agreement.

There is nothing improper, I submit, for a Union to request or demand or even strike to force an employer to execute a collective bargaining agreement.

However, the Board in its decision sets forth no specific factual determination which can support the conclusion that it finds, namely that this conduct is to force one employer to seize doing business with another.

Warren E. Burger:

Would you give us as a hypothesis as to what they were trying to do?

Earl S. Aronson:

The Board?

Warren E. Burger:

No, your client.

Earl S. Aronson:

My client?

My client was seeking to have Union conditions uniform throughout this job.

White was not complying with what, in my client’s opinion, were the uniform conditions on the job.

It, thereafter, went to Burns who is the general contractor, who is not a completely disinterested party, who in fact is so interested that it submitted this dispute to the National Joint Board.

Initially, it went to Burns to advise that it was having difficulty with White, that White was not complying with the terms of the Union conditions in the area and that it wanted White to put a man on the welding machine.

The general contractor was asked to sign a collective bargaining agreement, which is not unusual in the building and construction industry, and he refused.

The Union was seeking to have Burns & Roe, the general contractor, exercise its influence over White so that White would put a member of the Operating Engineers on the welding machine, rather than an Iron Worker.

This was precisely the object that the Union sought in the Wend Nagle case in the Seventh Circuit, and the Court there stated that there’s absolutely nothing wrong with this objective.

This is not a seize doing business objective.

Maybe if there are strikes and pressure it’s an illegal jurisdictional dispute, and I do not argue that point here, but it is not a seize doing business objective.

It would have served no purpose in this case to have the Union or the employer Burns, seize doing business with White. The trial examiner so found, the Union didn’t want White off the job.

As a matter of fact, White was never removed from the job and the two work stoppages involved a seize on or about October 11th of the year involved.

White stayed on the job.

There were subsequent jurisdictional dispute work stoppages, but that was all.

Warren E. Burger:

Well, you’re challenging the findings– the factual findings of the Board then, aren’t you?

Earl S. Aronson:

Yes, I am, Your Honor.

I’m challenging them because when the case was submitted to the Court below, and I believe that both counsel misinterpreted the holding of the Court below, nowhere in the decision of the Court below does it state “there must be a total cessation of business.”

What the Court below says, as I read its opinion, is that if the form of coercive activity takes that of a work stoppage, that in it of itself, “without Moore,” is insufficient to establish a seize doing business objective.

The “without Moore,” which the Board and counsel would ask be found as a matter of law, is the crucial fact, the fact which this Court found in Denver not by implication but as a matter of fact, the Union said “we don’t want them on the job.

We want to get rid of his business” which the Court found, as a matter of fact, in the following two cases which were decided the same day that Denver was, the Board says “this is what the Union must have wanted.

This is the only alternative to the primary employer exceeding to the Union’s demands.”

Earl S. Aronson:

That is not so.

That is pure conjecture.

It very well may be that the general contractor will remove the primary from the job site.

That might happen, but the mere fact that it might happen does not mean that the Union desired that that would happen or had the remotest wanting for that to happen.

The mere fact that, at times, there are incidental effects to activity does not necessarily follow that that is the desired effect.

Of course, the–

Warren E. Burger:

Are you suggesting that, on this record, if that had occurred, it would be an incidental effect which the Union had never intended?

Earl S. Aronson:

Yes, sir.

I suggest that because that was not the only alternative opened to Burns & Roe.

If the Union, and there are Unions and there are cases and the Board decisions are rife with these cases, goes to the general contractor and says to the general “I want you to utilize your influence upon the subcontractor to have him comply and, if you can’t do it, I want you to bounce him off the job,” then we have no difficulty.

We have then the Union stating what its alternative objective and that which it desires.

But, in this case, one, White did not put a man on the welding machine, two, he was not removed from the job, and three, the Union never asked that he’d be removed from the job or in fact is there any evidence to show that it desired he’d be removed from the job.

The findings of fact of the trial examiner which the Board completely disregards and just substitutes its own finding as a conclusion, establish that the Union didn’t want White removed from the job as it would’ve served absolutely no useful purpose.

Again, in contradiction to the Board’s argument of per se, the Court of Appeals for the District of Columbia in the Retail Clerks case, which is cited in my brief, also refused to accept the Board’s per se argument that every time a Union engages in secondary activity, it must be for a seize doing business objective.

In that case, the Union was seeking to force the primary employer to recognize it.

The statute prohibits secondary activity for that purpose, and the Board contended to the Court, if the evidence establishes that the Union engaged in conduct, secondary, to force the primary to recognize it, as a matter of law, it must be found that the Union engaged in the conduct also to force the secondary to seize doing business with the primary.

The Court rejected the argument.

It said it could visualize situations where a Union might seek recognition but not a cessation of business.

With respect to the argument that a change in business operations, such as the imposition upon White of an obligation to put an Operating Engineer on its payroll to operate a welding machine, is the equivalent of a seize doing business objective is an exaggeration of this statute beyond means and compare.

There is absolutely nothing to show that Congress ever intended a change in business operations to be proscribed.

Had it so intended, it would’ve stated it.

It only proscribed a seize doing business objective.

There is an important area of disagreement, and that is the neutrality of the employers involved on the particular job site.

There is no evidence in this record that the Union extended any work stoppages or any threats beyond the confines of this job site.

The Denver case has been in existence since approximately 1951.

However, its principles do not, in my opinion, conclusively establish that the mere fact that there are independent corporations, independent contractors on a construction site, that that alone means that they are neutral.

I believe that the principle set forth by the petitioners has been altered by this Court in the General Electric case and in the Carrier case.

In those cases, although they involved separate gate picketing which is not involved in this case, but the principle remains the same because if the proviso to Section 8 (b) 4 has any meaning, it means that it’s a primary strike, there are primary picketing, picketing situation is protected.

In those cases, we had independent contractors at the same job location and this Court developed the normal operations test to conclude whether the employers were in actuality neutrals, secondaries, and whether the Union’s right to extend its dispute to these other employers was protected.

The Board does not apply the normal operations test to the construction industry.

Earl S. Aronson:

It utilizes a foreign test, that is, you’re an independent contractor, therefore, you are neutral.

It closes its eyes, I submit, to the realities of the construction industry and, as pointed out by this case, it claims that Burns was a neutral.

Burns had more interest in this job site, I submit, than any employer located thereon.

He was the general contractor, number one.

Number two, Burns was the one who could have bound White by executing a contract with a legal subcontractor clause.

Number three, it was Burns who submitted the dispute to National Joint Board.

Now, the NLRB’s decision does not go into or discuss in any way factually what the operations of these employers were in relation to each other at the job site.

If it is permitted to disregard the Carrier case and the General Electric case, it will be discriminating against Unions in the construction industry because there is nothing in the statute which states that Unions or employers in the construction industry are under a different set of rules than Unions in industrial plants.

There is further support for this type of an argument concerning the non-neutrality of employers on the same construction site.

In Board Member Fanning’s decisions, he, when there is a jurisdictional dispute and a secondary boycott, if you will, holds that the finding of a jurisdictional dispute precludes the finding of a secondary boycott.

But, he also states that, in jurisdictional dispute situations, it is clear that the concept, primary and secondary, is unreal.

That, in a jurisdictional dispute situation, a Union should have the right to exert whatever pressure it has to in support of its jurisdictional claim upon all of the contractors.

Because of the interrelationship he, in effect, applies the normal operations test to the situation, as this Court did in the Carrier and General Electric cases.

Is this an argument involving the contract to be applied as a primary?

Earl S. Aronson:

Yes, Your Honor.

It is an argument that the conduct directed towards Burns was clearly of a primary nature.

It–

What about the other subcontractors?

Earl S. Aronson:

The other subcontractors as well, Your Honor.

I gather the strike’s primarily a variable.

Earl S. Aronson:

That’s true.

Burns had no employees of its own.

It subcontracted all of the work.

It is our position, sir, that–

The only conduct related to Burns was the approach to Burns to decide to sign the contract, is that it?

Earl S. Aronson:

No, sir.

There were approaches made to Burns.

However, as well, Burns was advised that unless he did sign a contract and unless White signed a contract or put a man on the welding machine, there would be work stoppages.

There were threats.

The work stoppages would be of the employees of the other two subcontractors.

Earl S. Aronson:

And White as well.

White, too.

Earl S. Aronson:

That’s–

(Inaudible)

Earl S. Aronson:

Yes, White did employ Operating Engineers for a period of time on a crane, and I am not sure whether there was another piece of equipment but, at the initial work stoppage, the October 1st work stoppage, White had in its employ– members of the Operating Engineers owned a crane.

I say to the Court that the Denver case is still the law.

However, there are some facets of Denver which this Court, I submit, has changed.

To allow a Union in the industrial plant situation more leeway than you do in the construction industry is not proper.

As Mr. Justice Douglas stated in his dissent in the Denver case, if a Union has the right to obtain certain working conditions, why then must it be forced on one job to live with conditions other than that which it has with other employers.

If it extends its activity to another job, I have no difficulty with that situation.

William J. Brennan, Jr.:

Has any Court accept your proposition that circumstances like this on construction jobs, the conduct in which your client engages is always primary conduct?

Earl S. Aronson:

No, Your Honor.

As a matter of fact, in the–

William J. Brennan, Jr.:

It’s protected actually.

Earl S. Aronson:

That’s, Your Honor.

In the Mark, Will, & Hart’s case it was rejected, with Judge Winston dissenting.

I feel that the National Labor Relations Board, Board Member Fanning at least, accepts the argument, and in the Mark, Will, & Hart’s case, I believe there were two dissenting opinions from the majority opinion accepting the argument.

It is an inequity that I feel should be stopped.

I feel the National Labor Relations Board has the expertise to set forth in its decisions criteria other than the mere independent contractor test.

William J. Brennan, Jr.:

Do you think there’s anything in the legislative history of any of these provisions which supports that argument as related to a construction site, as to– that this conduct is always primary conduct?

Earl S. Aronson:

I cannot pinpoint anything in the legislative history which–

William J. Brennan, Jr.:

Actually, isn’t it quite the other way?

Earl S. Aronson:

No.

I can’t agree with that also, Your Honor.

Warren E. Burger:

Well, in your view, there wouldn’t really be a secondary boycott.

Earl S. Aronson:

Precisely, Mr. Chief Justice.

Warren E. Burger:

There is no such thing.

Earl S. Aronson:

No, there is a secondary boycott and I can give the Court an example of a secondary boycott.

I thought I had.

If a Union goes to an employer and says “I want you to suspend your contractual relationship with another employer, because he won’t sign a contract with us, and not to do business with him”

Warren E. Burger:

Is that the way of life in the real world of industrial relations?

Earl S. Aronson:

Your Honor, I– it is the way of life.

It does happen, and it happens more frequently than people could believe on construction jobs.

The Union agents are not as sophisticated as attorneys who represent them or as attorneys who represent the employers and, when they get on a job site, and the cases before the NLRB are consistent in this regard, they indicate to the general contractor “we got a problem with a subcontractor or we have a problem with another employer, and unless you get rid of him, this job is going to shut down.”

Now the Board, of course, can make its ultimate finding of fact from facts other than that which I have just stated to the Court, and it has done so.

It looks at the entire record as a whole to find out what the true object of the Union was.

This is not an easy area for the Board.

The Board has had difficulty over the years in finding, in many cases, what the true objective was.

However, it can be done.

I don’t say that’s the only way it can be done, but to substitute a per se argument as the Board has done here without any basis in fact is improper.

Thank you.

Potter Stewart:

I noticed that this case was decided by a panel of only two judges in the United States Court of Appeals for the Third Circuit.

What was the reason for that?

Earl S. Aronson:

Your Honor, I believe there was a third judge appointed to the panel, Justice Van Duzen, who disqualified himself.

That is my recollection.

Warren E. Burger:

And they proceeded just with the quorum of two then.

Earl S. Aronson:

That’s correct.

Warren E. Burger:

Very well.

Mr. Gold.

Laurence Stephen Gold:

Mr. Chief Justice, and may it please the Court.

I think it would be best if I started by attempting to distinguish between what we regard as two very separate issues in the law of secondary boycotts.

The great majority of the cases which have come before this Court involved situations involving the primary-secondary dichotomy, whether activity is primary and, therefore, outside the sweep of Section 8 (b) 4 because of the explicit proviso in the 1959 legislation and because of the manifest intent of Congress, as this Court recognized prior to 1959.

It was our understanding from the opinion of the Court below that that facet of the overall problem relating to Section 8 (b) 4 (b) was not in this case.

The decision below concentrates on quite a different problem but, as Mr. Aronson points out, there are decisions of this Court in Carrier and General Electric which indicate that there’s a test of relatedness of work and there are no findings by the Board on that issue.

The Board simply states and assumes that all the employers other than White were neutral, and–

Potter Stewart:

Now, that’s been the assumption, as I read the record, all the way through.

Laurence Stephen Gold:

Yes.

Potter Stewart:

The trial examiner that decided–

Laurence Stephen Gold:

Right.

Potter Stewart:

In favor of the Union, nonetheless, seem to not question that White was neutral.

Laurence Stephen Gold:

No.

This, as I say from our reading of the decisions–

Potter Stewart:

And the Third Circuit–

Laurence Stephen Gold:

By the trial examiner of the Board and the Court below was that this issue, as to primary-secondary, was not in this case, and we briefed the case accordingly.

I just note that, in light of Carrier and General Electric, if there are no findings about relatedness of work here and it might be that the Board’s findings are defective in that regard in addition to the regard which I’d like to turn my attention to now.

Warren E. Burger:

Let me ask you just one question.

Is it your submission that the– isn’t a secondary boycott in operation lest it succeeds in bringing about a complete cessation of work?

Laurence Stephen Gold:

No, Your Honor.

Warren E. Burger:

If it is aimed at that, it is enough, isn’t it?

Laurence Stephen Gold:

Yes, Your Honor.

That, I think that is clearly correct and I think, in addition, the question is what is– narrowing down to the point you raised in putting aside the primary-secondary aspects, the question is, from all the evidence, can the Board rationally infer that there was an object cessate– seized doing business object or–

Nothing less than that suffices the statute.

Laurence Stephen Gold:

Excuse me, Your Honor.

Nothing less than that suffices the statute.

Laurence Stephen Gold:

Yes.

Well, our view is–

In other words, there must be a contract whether if it’s cheated or not, and an object clause, complete cessation.

Laurence Stephen Gold:

Yes.

Well, I feel that talking in terms of cessation of business alone isn’t sufficient.

Through the years, we have fought for the proposition that literalism is not the key to this statute, and we afford for it because we think that that is the correct view in light of the way the statute was written and in light of the legislative history, and we’re not going to abandon that position for any short-term advantage in this case.

However, we do believe that the Board has to make a finding as to the Union’s object.

It has to find that there was an illegal means and an illegal object.

And, in finding the illegal object, it has to look– it has to determine what the policy embodied in Section 8 (b) 4 (b) is, and whether the Union is seeking to implement that policy.

Hugo L. Black:

Specifically, what’s the fe– what did the Board fail to find here?

Laurence Stephen Gold:

Well, we feel that the Board failed to find that the Union– the conduct was designed to coerce a neutral, to take action which is economically detrimental to him.

We believe that 8 (b)–

Hugo L. Black:

Well, just what exactly in the context of these facts?

Laurence Stephen Gold:

Well, we believe that the purpose of Section 8 (b) 4 (b) is to prevent Unions from coercing neutral employers to take actions which hurt them.

Let’s take an ex–

Hugo L. Black:

Let’s take these two subcontractors.

Hugo L. Black:

What kind– what finding should there had been?

Laurence Stephen Gold:

The finding should have been, as to them, that the Union wanted them to either stop doing business with White or to take some other–

Hugo L. Black:

Then they’re doing business with White, were they?

Laurence Stephen Gold:

Well, I think they all three– I think all four were doing business together.

There was a general and three subcontractors work–

Hugo L. Black:

What’s your alternative?

Laurence Stephen Gold:

Either to stop doing business with White or to take– to make some change in their relationship with White which would harm them in– economically, in their pocketbook.

If all the Union does is go to a neutral and ask him to use his good offices or his influence with the– with–

Hugo L. Black:

Yes but, here, they actually struck.

Laurence Stephen Gold:

Well, that is the means.

Hugo L. Black:

They struck the two jobs.

Laurence Stephen Gold:

That is the means to one end, o the ending to get White to give them the work, and that being the only end.

In other words, if means were sufficient in themselves, you would never have to look to what the Union hoped to accomplish.

Every time there was a secondary strike, the Board would be home free.

Hugo L. Black:

Then why is it you say, by striking this other contractors, to violate the statute would have to have been their objective, why?

Laurence Stephen Gold:

They would have to be– certainly, if they wanted them to give up their contract and to get off the job, that would hurt them economically.

If they ask them to give up some work that they were doing and give it to White, that would hurt them economically.

Something has to be shown that the Union wants the neutral to do something which hurts him economically.

We believe that that is what Section 8 (b) 4 (b) was intended.

That is its purpose.

If that wasn’t its purpose, good many things become inexplicable.

First, why did Congress talk in terms of means and objects?

William J. Brennan, Jr.:

Well, then you– are you saying then that the Court of Appeals went too far in its definition of what the objective had to be?

Laurence Stephen Gold:

Well, I think the Court of Appeals did go somewhat too far.

I think that its view has a kernel of soundness.

It saw the defect in the Board.

William J. Brennan, Jr.:

Yes, but it was in effect.

Its view was that the statute is not violated unless the object was to get White off the job. In effect, that’s what it said.

Laurence Stephen Gold:

Yes.

William J. Brennan, Jr.:

And you say that’s not what the Board had to find.

Laurence Stephen Gold:

That’s right.

William J. Brennan, Jr.:

Something less short of that would be enough.

Laurence Stephen Gold:

Yes, we do.

We rest much more strongly on Judge Prettyman’s view in the Retail Clerks case in the D.C. Circuit.

We believe that both Judge Prettyman and the Third Circuit were looking towards the same defect in the Board’s reasoning.

In other words, we think the defect is that the Board is seeking to read objects completely out of the Act and find that secondary conduct and secondary boycotts are synonymous.

And, we believe that that’s absolutely incorrect and we think that Judge Prettyman has pulled them up short and the Third Circuit has as well, but we believe the Judge Prettyman did it correctly and we believe that the Third Circuit, while diagnosing the evil problem, may well have gone too far.

Now, I see that it’s two minutes past three and that I have some time should–

Warren E. Burger:

You’ve got about four more minutes.

Laurence Stephen Gold:

Should I finish at this time?

I want to especially note the applicability here of Mr. Justice Frankfurter’s opinion in Sandor.

As I started to say, we think that two quite separate problems in this area.

One is the primary-secondary dichotomy.

The second is whether there is a distinction between secondary conduct and secondary boycotts.

We believe that this Court, starting with Sandor and going through Mr. Justice Harlan’s opinion in Jacksonville Terminal, has recognized that there is a distinction.

And, Sandor is especially important because that was, as we read it, a case where there was no primary aspect.

There’s a footnote saying that there was a contention of primary activity and that it was rejected, and all that was in issue–

Potter Stewart:

I thought that was a hot cargo case?

Laurence Stephen Gold:

It was, Your Honor, a hot cargo case.

Potter Stewart:

Prior to the 1959 amendment.

Laurence Stephen Gold:

Right, and the question was whether both means, illegal means and an illegal object, had been shown.

Potter Stewart:

Right.

Laurence Stephen Gold:

And that is the way Mr. Justice Frankfurter analyzes the problem, recognizing that the conduct was secondary.

He then says “do we have both illegal means and an illegal object?”

And he finds that, in that case, there was a violation.

Now, however, there was a caveat in that case that hot cargo agreements in it of themselves were not illegal, so that he didn’t completely take out the ability to use certain means to reach a clearly illegal object.

Congress responded to that in 1959 by leaving the structure of the statute the same.

It seems to us, that by doing so, they agreed that means and objects had to be shown, but they reacted by broadening the prohibitions against means to accomplish the end that they sought, which was to close a particular loophole.

So, we think–

What was that end?

What, in your judgment, did they intend to forbid?

Laurence Stephen Gold:

Congress?

Yes.

Laurence Stephen Gold:

In 8 (b) 4 (b)?

Yes.

Laurence Stephen Gold:

We believe they intended to make it illegal for a Union to coerce an employer to take ac– to coerce a neutral employer to take action which was economically detrimental to him, such as seizing to do business with someone else, the assumption in our economy being that doing business with someone is an indication that the relationship is advantageous to both sides.

I just want to note, in concluding probably the two basic points I want to make, I want to note that, in concluding, that we don’t think that Denver Building Trades has anything to do with this case other than the fact that both arose at a work site.

The findings which we note in our brief made it perfectly plain that the only thing that Denver Building Trade’s counsel wanted was this electrical subcontractor off the job because he was a thorn in their side and they were going to try to drive him out of business.

The Board’s findings make that perfectly plain.

Warren E. Burger:

May I ask one more question, Mr. Gold.

Do you read Judge Prettyman’s opinion in the Retail Clerks case as meaning that there must be an objective of complete cessation of business?

Laurence Stephen Gold:

No, Your Honor.

Warren E. Burger:

No.

He merely gave that as an illustration of a pressure which would produce the maximum result as against a pressure that had no impact at all.

Laurence Stephen Gold:

Yes, we’ve–

Warren E. Burger:

That the line between those two extremes, a disruption of business could be a violation clearly under Retail Clerks.

Laurence Stephen Gold:

Right, and we think that the problem is, in drawing the line, the Board is trying to get away from that by cutting out the whole problem and saying wherever you ask for a change in the relationship, they can find that you have violated Section 8 (b) 4, that they don’t have to find any object to harm the neutral in his economic situation.

And, I also want to say that, in disagreement with–

William J. Brennan, Jr.:

May I ask, Mr. Gold, has your plea– cited on the legislative history which supports this meaning of seize to do business?

Laurence Stephen Gold:

We haven’t cited any legislative history on the meaning of cessation to do business because we couldn’t find any–

William J. Brennan, Jr.:

I couldn’t either, but I wonder.

Laurence Stephen Gold:

What we do is– our argument really is based on the language the Congress used of the reasonable emanations of that language and the fact that a reading broader than one we would give, it would knock out or make nugatory certain other provision of the Act, and we believe that this is the most rational meaning that we can give.

Finally, I want to note that the Erie Resistor argument which is made by the Board is barred by Chancery.

I hate to disagree with the general counsel.

It is true that the Board cited a case called Local 3IVW in deter– in stating why it was finding that there was a violation here, but that case is simply one which states that anything– that any request of an employer for a change in business is illegal per se under Section 8 (b) 4, and the Board– that case really demonstrates that– why the Board would never have turned to Erie Resistor, because its per se theory makes Erie Resistor which is one about drawing inferences irrelevant.

And, we think that this is a demonstration by Board counsel that they recognize the weakness of the Board’s opinion and the Board’s approach in this case.

We think it’s barred.

We think it would have the most drastic consequences.

Thank you.

Warren E. Burger:

Thank you, Mr. Gold.

Warren E. Burger:

You have one minute left if you–

Arnold Ordman:

Yes, sir.

Warren E. Burger:

Wish to use it.

Arnold Ordman:

Mr. Chief Justice, just one observation.

I think Mr. Gold has conceded the fact that the cessation of business can be something less than total and complete.

I merely to– wish to observe that his definition of this question of something being economically disadvantageous to the neutral is something new that our Courts have not adopted, and I would submit that there were many subcontractors.

They came on this site under Burns & Roe, subsequent to these three and the economic disadvantageous definition, which has never been adopted, no legislative history to support, ignores: one, they were economically damaged by having their jobs stopped.

These men have superintendents.

They have equipment.

They have running expenses.

They were economically damaged, irrespective of what would happen with the welding machine.

Moreover, the Joint Board procedure and the appendix indicates clearly that under the Engineer’s contract, which is in the appendix at page 324, says that with regard to that Joint Board procedure which bound all of these employers, that the last known job decision must be followed by each of them.

Consequently, if the Engineers had won this particular type of dispute, that would have been a condition that would have to have been accepted by Burns and any of his sub and, consequently, it would’ve been economically disadvantageous.

Warren E. Burger:

Thank you.

Thank you, Gentlemen.

The case is submitted.

The Honorable Court is now adjourned until tomorrow at 10 o’clock.