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DOUDS EX REL. NLRB v. SHEET METAL WORKERS INTL. AS

November 20, 1951

DOUDS on Behalf of NATIONAL LABOR RELATIONS BOARD
v.
SHEET METAL WORKERS INTERNATIONAL ASS'N, LOCAL UNION NO. 28



The opinion of the court was delivered by: GALSTON

Upon the petition filed pursuant to Section 10(l) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 160(l), the petitioner seeks a temporary injunction against the respondent.

The petition recites that on or about July 16, 1951 Ferro-Co Corporation (hereinafter called Ferro-Co) filed a charge with the National Labor Relations Board (hereinafter referred to as the Board) alleging that the respondent had engaged and is engaging in unfair labor practices within the meaning of Section 8(b)(4)(A) of the National Labor Relations Act, 29 U.S.C.A. § 158(b)(4)(A). This charge was referred to the petitioner, as the Regional Director, for investigation. The petition recites that after such investigation he has reasonable cause to believe that the charge is true, and that a complaint of the Board based thereon should issue against the respondent.

 It is alleged that Dierks Heating Co., Inc. (hereinafter called Dierks), is in the business of installing heating and ventilating systems in public buildings; and that the respondent has been the representative of the sheet metal employees of Dierks and other members of Heating, Piping and Air-Conditioning Contractors, New York City Association (hereinafter called the Association) for the purpose of collective bargaining. For several years Dierks and other heating contractors, members of the Association, purchased radiator enclosures on special orders from Ferro-Co and other manufacturers of radiator enclosures who were not members of the Association and who do not employ members of the respondent.

 The petition alleges that on or about June 22, 1951 the respondent induced the employees of Dierks and of other members of the Association to engage in a strike or concerted refusal, in the course of their employment by such employers, to use or otherwise handle or work on any products of Ferro-Co and other manufacturers of radiator enclosures who do not employ members of the respondent.

 Because of such alleged violations of the Act, the petitioner seeks an injunction to enjoin the respondent, pending a final adjudication by the Board.

 A hearing on the order to show cause was held beginning September 19, 1951, and the testimony of a number of witnesses was taken.

 The issue in this proceeding then is to determine whether the alleged acts of the respondent fall within the provisions of Section 8(b)(4)(A), and thus constitute unfair labor practice. That section reads in part as follows:

 '(b) It shall be an unfair labor practice for a labor organization or its agents --

 '(4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal * * * to use, * * * or otherwise handle or work on any goods * * *, where an object thereof is: (A) forcing or requiring * * * any employer or other person to cease using, selling, * * * or otherwise dealing in the products of any other producer, processor or manufacturer, or to cease doing business with any other person'.

 An article in the Harvard Law Review for March 1951, discussing the Taft-Hartley Act and referring to this section, suggests that: 'Four fundamental issues have been involved in defining the extent of these restrictions: (1) What activities are forbidden? (2) What defenses may be attempted after apparent violations? (3) What parties are covered? (4) What remedies are given for violations?'

 It is then observed by the writer of the article: 'Probably no other provision of the LMRA is as difficult to understand as Section 8(b)(4)(A).

 On first impression it would appear that the facts developed at the hearing warrant the conclusion that the primary object of the respondent was to compel Dierks and all other members of the Association to employ only members of the respondent in connection with the manufacture and installation of radiator enclosures to be installed on construction jobs of the Association members.

 Certainly as a result of the respondent's acts, since Ferro-Co did not employ members of the respondent in the manufacture of its radiator enclosures, Ferro-Co was prevented from furnishing its products to Dierks in the construction jobs undertaken by Dierks. So in terms at least the conduct of the respondent fell within the provisions of Section 8(b)(4)(A) of the Act, for, as is said in the Yale Law Journal, Vol. 60, 684; 'Read literally, 8(b)(4)(A) would invalidate most picketing.'

 However, the authorities apparently do not give so generous a construction to the provisions of the quoted section. Recourse, therefore, was had by the courts to the legislative history in the effort to narrow such construction. As a result it was concluded that the purpose of this provision of the Taft-Hartley Act was to outlaw the 'secondary' boycott, as constituting an unfair labor practice. Having then reached the conclusion that the unfair practice described in this section was that known under the common law as a secondary boycott, the trend of the decisions was to determine what a secondary boycott is. In passing it may well be observed that in International Brotherhood of Electrical Workers, Local 501 v. National Labor Relations Board, 2 Cir., 181 F.2d 34, at page 41, Judge Clark, in his dissenting opinion described as vague the terms 'primary' and 'secondary'. He said these 'are not terms of either science or art or of the statute and which serve only to confuse and to contradict'. Nevertheless he too said that an avowed purpose of the Act was to prohibit 'secondary boycotts'. And the ...


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