HOUSTON CONTRACTORS ASSN. v. NLRB
Argument of W. D. Deakins, Jr.
Chief Justice Earl Warren: Let's get to the cases.
Number 206, Houston Insulation Contractors Association, Petitioner, versus National Labor Relations Board, Number 413, National Labor Relations Board versus Houston Insulation Contractors Association.
Mr. Deakins, you may proceed with your argument.
Mr. W. D. Deakins, Jr.: Mr. Chief Justice and may it please the Court.
This is a case in 206, it's similar in many respect to the Frouge case.
I think, however, this is a case that points up the fallacy in Mr. Manoli's argument this morning with reference to the determination of the dominant motive.
You'll recall that he said in answer to questions by the Court, in discussing the evil sought to be cured by the passage of Section 8 (b) (4) that that was a case where products of a nonunion employer or an employer has a dispute with a union are sought to be boycotted and he said -- and that is Sand Door.
Now the target, Mr. Manoli said, is the product of another dispute.
He said the employees of a union employer have no dispute with her own employer and seek to prevent the products of a nonunion employer from being installed and that is where Sand Door comes into effect.
I say that there -- it's not necessary that there'd be a dispute because the dominant motive according to the decisions of this Court, and as I read the statute does not control.
In this case, the petitioner in 206 is a group of contractors who formed an association that have bargained with Local 22 affiliated with the International Association of Heat and Frost Insulators and Asbestos workers.
They entered into a contract.
The contract contains two important provisions.
Article VI says that the employer agrees that he will not sublet or contract out any work described by Article XIII.
In turn, Article XIII states that it covers rates of pay rule, working conditions of all mechanics and improvers in the preparation, distribution, and application of -- I will generalize this, insulation materials.
Now in connection with the interpretation which the union has placed on this contract, they have picked the word preparation which they say is jobsite work that they're entitled to have and that when the two members of the association purchased materials from all jobsite, nonunion suppliers that the company violated that agreement.
Now what occurred was that Johns-Manville, one of the members of the Association had a job at Texas City, Texas on a construction project.
In fact, both of these are construction projects.
They have purchased some precut metal bands that hold aluminum jacketing around piping in place.
And when they were delivered of the jobsite, the union refused to apply them.
Of course, they didn't have a decal or label attached to the box to show as I will adopt that they were union made.
Armstrong was working in Victoria, Texas under the jurisdiction of Local 13 of the same union but the contract -- there was no contract in effect between Local 113 and the Association or Armstrong, either one.
When Armstrong purchased some pre-mitered asbestos fittings to be applied to joints of pipes, those fittings were not applied by the union because they were -- did not vary union labor.
Now, as soon as that occurred, of course charges were filed and a complaint was issued, and an injunction secured in the United States District Court of Houston.
At the hearing on the Board case, certain evidence was introduced which we think was mostly important in this case and which brings about our first point which lies under Universal Camera case but let me tell the Court first what occurred.
The current examiner held that the refusal to handle the products of Techalloy and Thorpe, the two nonunion off jobsites suppliers was unlawful because the exemption of Section 8 (e) applied only to be worked -- to work to be done at the jobsite, and not the materials manufactured off the jobsite and ship there for installation.
He said also, even if this work and the application of the products had been jobsite construction work, they refuse to handle these products was unlawful under Sand Door.
So he held that the International Union was not involved in this proceeding.
The Board then reviewed this decision and held that the strike in each case was for work preservation.
And thus, the strikes were primary and not unlawful.
It did not deal with the implications of Section 8 (e) in this case and the court below speciically pointed that fact up.
So when we went to the court below, the Court agreed with the Board that the activity of Local 22, that was the Local with which there was a contract, was not unlawful because it engaged in work preservation.
It held that Local 113, that's the one at Corpus Christi, was not engaged in work preservation because it had no contract with the Association or Armstrong, and held that it was guilty of an 8 (b) (4) violation because it got an innocent third party.
And that's Thorpe who manufactured the pre-mitered fittings involved in a labor dispute not of its own making.
Now, we believe that this entire case is dependent to quite an extent on certain testimony that was given by an International vice president of the union who is also the Secretary of Local 22.
His name is Baker.
The International's attorney called him and put him on their stand as their witness.
And here was the questions in this very brief by Mr. (Inaudible), the attorney.
“Has your local instructed its members not to use the products of Thorpe?”
The answer is “yes”.
Under all circumstances?”
Answer, “Yes, as far as I know.
Question, “Is the same true of Techalloy?”
Answer, “Yes, as far as I know.”
Alright -- question, “Alright!
And why have you instructed your local members to take those positions?”
Answer, “We are not in agreement with Thorpe or Techalloy”.
Now his attorneys sensing that this was a bad statement interposed and said, “Well perhaps you misunderstood my question, Mr. Baker.
Let me rephrase it,” but the trial examiner interrupted and said, “You mean because you have no contract with them?”
Answer, “No contract, no.”
Now it's true that this same witness later stated that it would be a violation of the contract to apply these materials but I say this is what Mr. Manoli was talking about.
Who's going to pick what unlawful object is the dominant unlawful object?
There wasn't any dispute that we know of with these people.
The off jobsite, nonunion suppliers which we think are covered by Section 8 (e).
At least it wasn't an active dispute but that isn't required under Sand Door or the other cases.
As we view this case, Denver Building Trades really controls the question of what's the dominant, what's the non-dominant purpose?
In that case, this Court held that if there was one unlawful object, the entire strike was taken.
And we think that's the case here.
Now the Fifth Circuit considered this matter and the general counsel was hard put to explain away this testimony.
I suspect because for the first time in their brief to the Court of Appeals, they said Mr. Baker's testimony was confused.
Well Mr. Baker never said it was confused.
He never said he misunderstood the question.
He never said that his answer was wrong.
He didn't deny this at all.
We think that is evidence of a motive which this Court should have considered below.
Now the Board suggests and they think from the text of Universal Camera, that part where this Court was admonishing the Courts of Appeals of the requirement for canvassing the record as a whole.
They took that part to court, it said the Court may not displace the Board's view between two fairly conflicting views even though the Court would justifiably have made a different choice, had the matter been before de novo.
Now, I submit this witness doesn't have too fairly conflicting views.
He's a one man.
He's a high official with this union.
He stated two objectives of two objects, to motives of this refusal to handle these products, one unlawful or certain under Sand Door.
The other unlawful we think under the statute.
Justice Hugo L. Black: But then he stayed in the third didn't he?
He went back and said, "changed his views", I understood you to say?
Mr. W. D. Deakins, Jr.: No sir, he didn't go back and changed his views.
He said, it would be a violation of the contract.
But he never did say that his reason for not having the Doors because they were nonunion employer was not the fact.
He never did deny that.
Justice Hugo L. Black: Well, you're asking us to upset the findings of the Board.
Mr. W. D. Deakins, Jr.: Yes, sir on that.
And if the Court please, in our brief, we've cited NLR versus Pittsburg Steamship Company on a case where there was a question of bias on the part of the examiner but this Court quoted the language we -- which we think is absolutely or very pertinent here.
And there, it's about credited evidence.
It says, on -- it was quoting Judge (Inaudible) --
Justice Hugo L. Black: Well, was there any other evidence that denied that evidence?
Mr. W. D. Deakins, Jr.: Some other -- no sir, there never was.Some other witnesses said it was work preservation.
Let's see --
Justice Hugo L. Black: Did he say it was not the other?
Mr. W. D. Deakins, Jr.: No sir, they never did deny this.
No one ever denied this.
Justice Hugo L. Black: What you are saying is that you have undisputed statements by all the witnesses --
Mr. W. D. Deakins, Jr.: By one wit --
Justice Hugo L. Black: This is one of the motives?
Mr. W. D. Deakins, Jr.: Sir, by one witness, the principal witness, that --
Justice Hugo L. Black: Now what did the other witnesses said?
Mr. W. D. Deakins, Jr.: The other said, once -- one man told the Johns-Arm -- Johns -- I mean the Armstrong man that the union wouldn't apply mitered fittings because they had no union labor.
One of them, the business agent of --
Justice Hugo L. Black: Well, now that was a dispute in effect of what the first man said, wasn't it?
Mr. W. D. Deakins, Jr.: A dispute?
Justice Hugo L. Black: Wasn't that -- didn't that dispute his statement if there's a motive?
Mr. W. D. Deakins, Jr.: Well, no, the other testimony Your Honor shows that I think that the union label was used for a purpose of boycotting nonunion goods because this first witness published a matter which was Exhibit 2 concerning these labors.
And here's what -- I'm not going to read this entire thing.
It's about page and a half long but it states the general affirmations subject decals, labeled -- decal labels that was published in 1963 just a little while before this instant occurred.
One sentence says, “The purpose of this gum label is to properly identify the asbestos worker who performs the work and to insure quality workmanship.”
Numbered gum label -- decal labels are supplied for the general office through the business agent to the worker in charge of preparing them -- the materials off the jobsite.
This procedure of labeling was announced and explained by the asbestos workers on several occasions.
All members are expected to abide by this international practice established by the general executive board.
The member, who fabricates materials and fails to fix a decal, is equally responsive with the member who applied fabricated materials about decals.
We believe that when that is considered with these other testimonies that this is clearly an indication on the part of the union.
They don't want nonunion products applied on any of their jobs.
Now, you understand the --
Justice Hugo L. Black: Do you concede if you have to go far enough just to show, do you not?
Justice Hugo L. Black: Sir?
Justice Hugo L. Black: You can concede do you not that you have to go far enough to show that this evidence was not refuted.
Mr. W. D. Deakins, Jr.: I don't think it was refuted, Your Honor.
Justice Hugo L. Black: And so it's up to them you say to show that it was refuted.
Mr. W. D. Deakins, Jr.: No sir.
I feel -- well, I think the court below should have reviewed this, the Board didn't do that.
I don't think.
The Board only said this is work preservation in the very brief decision and adopted that of the trial examiner.
The trial examiner, of course, as I've said made two findings.
We think you put a cart before the horse but be that as it may the result was right at least.
Now, Mr. Baker also has made the statement that they wanted the labels to show that these materials were made by union people.
Gram, the job foreman, under the Local 113 job who's also a member of the union as the record shows, told Armstrong's superintendent that the business agent said the fittings couldn't be applied unless they had union decals.
And in the Johns-Manville case, the manager said that a union member named Robert Oliver said that Shrout (ph), a business agent told him he couldn't apply the labels on precut bands because they weren't cut by union asbestos worker.
This came from off the jobsite.
Do you understand?
The man who was immediately in charged of the work and a member of the union said that the business agent told him at the union meeting that they couldn't apply the bands that they didn't come to the job with the label on.
And the same business agent told Roberts, they would not apply the job because they were cut by somebody other than asbestos worker.
Now, clearly these were cut off the jobsite.
Justice Abe Fortas: Mr. Deakins, does the record --
Mr. W. D. Deakins, Jr.: Yes sir?
Justice Abe Fortas: -- show whether it is customary for those metal bands to be cut on the jobsite?
Mr. W. D. Deakins, Jr.: They are sometimes, You're Honor, sometimes not.
The testimony in regard of that was that they ordinarily come into cartons with the other jacket.
Although they can cut them on the jobsite and I think they claimed that work part of the time.
I might as well say with reference to the asbestos fittings that they customarily are cut on the jobsite, although they can be cut.
It's just a matter of cutting with the miter, just -- with a saw and a miter box.
They -- sometimes the testimony shows they picked up fillings at the end of the job by buying them off the jobsite.
The union didn't complain about that.
That testimony wasn't reaffirmed as I understand the testimony and it left a little bit to be desired.
Justice Abe Fortas: Did the Board make any findings as to whether the metal bands and the asbestos were both customarily cut on the job?
Mr. W. D. Deakins, Jr.: I think the examiner did, Your Honor, that the Board did not itself adopt the examiner's provision to his decision.
Chief Justice Earl Warren: What did the examiner find in that regard?
Mr. W. D. Deakins, Jr.: Just a second Your Honor, let --
Chief Justice Earl Warren: Well, if you -- don't take too much on that (Voice Overlap) --
Mr. W. D. Deakins, Jr.: Alright, I can't find it right (Voice Overlap) --
Chief Justice Earl Warren: -- with your argument.
Mr. W. D. Deakins, Jr.: Yes sir.
Chief Justice Earl Warren: (Inaudible)
Mr. W. D. Deakins, Jr.: But we contend that this testimony of Mr. Baker was the death wound as the Court said in the Pittsburg case and that this truth is an (Voice Overlap) was not refuted and that shows clearly to us that one of the objects of this strike was to prevent the use of these materials.
Now if this is illegal -- admitted illegal objective of the union in this case isn't binding on them what it's given by a member of the International Land -- I don't think we can ever have a finding in one of these cases.
Now the central question in this case is similar to that which was argued by Mr. Mahin and that's whether the amendment date (b) (4) (b) which saves primary strikes and primary picketing from the prescriptions of the balance of the Section can be construed to permit a union to claim work preservation under a subcontracted clause and thus avoid that part of Section 8 (e) which limit subcontracting provisions to the work to be formed -- performed at the site of the construction.
The best indication that I think of the intent of Congress is seen from the plain language of the statute.
Now, the plain language of the statute and of the exception limits that the work to be performed at the site of the construction.
That statute does not say, work which could be performed at the site of this construction.
And as a matter of fact, in the legislative history, the day when the Bill was sent to the President for signature, Senator McNamara entered a statement in which he claimed that in the plumbing and pipefitting trade, there was a situation where there was a lot of prefabricating, and that this statute was intended to cover prefabricating that was done off the jobsite but Representative Kearns who was on the House Report and we've discussed all of this extensively in our brief, answered that pretty well.
He quoted from Senator John Kennedy who was really the principal author of this Bill, and Senator Kennedy said four things.
He said 8 (e) was intended to preserve the present state of the law with reference to -- with respect to picketing at the site of the construction project and to the validity of agreements relating to work to be performed at the site of the construction project.
That the law developed under Section 8 (b) (4) was unaffected and the Denver Building Trades and Sand Door remained enforced.
He said third, the contracts not to subcontract work on a construction site are legal since the provision of Section 8 (e) does not relate to Section 8 (b) (4).
Strikes and picketing to enforce the contract accepted by the provisions will continue to be illegal under Section 8 (b) (4) whenever Sand Door is applicable.
He also said it should be particularly noted that this provides or relates only to the contracting or subcontracting of work to be done at the site of the construction.
This provides or does not cover boycotts of goods manufactured in an industrial plant for insulation at the jobsite or the supplier who do not work at the jobsite.
Since the advent of this and fairly recently, a case which we cited on page 24 and 25 of our brief is the NLRB versus the Teamsters at 342 F. 2d 18, involved the contract containing a site work clause.
And they were hauling ready mixed concrete into this plant to be forward.
The Board held that this was off jobsite work and that the continuous mixing was still work that was part of delivery.
I don't know.
It seems to me a little suspicious to hold that because the mixing was continuing even when the concrete got to the jobsite.
And if that was part of the delivery, it seems to be stretching a point quite a bit because the work was continued but they did hold that this was off jobsite work and I think that squares somewhat with our situation here.
Now probably the strongest statement made in -- other than that of Senator Kennedy in support of our case was that by Senator Morris.
He was a better opponent to this Bill and here's what he said.
It would prevent a union from protecting the installation.
It would prevent a union from protecting the bargaining unit it represents by obtaining an agreement not to subcontract work normally performed by the employees of the union.
If that is what the Congress intended, I think that has answered a lot of questions that have been asked here of Mr. Mahin.
Now Sand Door, of course, involved a precise situation.
If the Court agrees with our first point here, because one of the stated objectives was to stop the handling of the goods of a Wisconsin fabricator, not because he was from Wisconsin but because they checked up and found that they weren't union made products.
And I think that that, under this testimony that we have given here is exactly what our case is because that is not work that could be performed that's covered under Section 8 (e).
That is work that was performed off the jobsite by what has been said by Mr. Kennedy and others to be a nonunion off jobsite supplier.
The conference report as well, Representative Kearns says -- supports this view.
He -- and to quote him, he said, -- he states at page 39 that the proviso in question relates only and exclusively to the contracting or subcontracting of work to be done at the site of the construction and that it does not exempt from Section 8 (e) agreement relating to supply the materials, ship to the site of the construction.
He also said that the Senate Committee on Labor and Public Welfare in its section by section analysis statement with respect to the section in question that the prohibition against hot cargo agreement does not apply the construction industry relating to work to be done at the site of the construction.
Justice Byron R. White: Well, isn't -- aren't those really -- used to be inconsistent -- I mean you would be -- that construction site proviso you say or somebody said, it refers to the work of -- that could be done or is to be done at the site --
Mr. W. D. Deakins, Jr.: No.
Justice Byron R. White: -- but not as to products shipped in?
Mr. W. D. Deakins, Jr.: That's right.
Justice Byron R. White: Well, what if there's an agreement that a certain work will be done at the site, likes -- like doors will be put together at the site, period.
Mr. W. D. Deakins, Jr.: Alright.
Justice Byron R. White: And which means that there is not going to be door -- finished doors shipped in.
Is that legal or illegal?
Mr. W. D. Deakins, Jr.: I think that that's -- the contract is illegal because -- the question is what was Congress attempting to prevent here?
And I --
Justice Byron R. White: I know but I just say that one statement of the legislative history isn't very informative because it wouldn't for example, tell us how to solve that question I just asked you.
Mr. W. D. Deakins, Jr.: No, I think probably Mr. Kennedy made the most enlightening statement on that -- on -- to all of those points.
Senator Morris though as I said that he's rather astute fellow.
He said what we say here that it's just one of those things that a union can't protect its people under a contractor.
Now they can protect them on work that is being performed on a jobsite.
And as I understand, as a practical matter, this construction --
Justice Byron R. White: Well, you say that they can protect them on work that is be -- that is being performed.
Mr. W. D. Deakins, Jr.: On the jobsite are to (Voice Overlap) --
Justice Byron R. White: Or it isn't much protection if the employer at the jobsite says we're going to quit doing this work that is now being done on the jobsite and have it done some place else.
Mr. W. D. Deakins, Jr.: Some of this work, Your Honor can't be done some place else.Of course, you appreciate --
Justice Byron R. White: Alright, let's take some of it that can't -- that is being done at the site that can be done some place else like doors can be put together at some place else.
Mr. W. D. Deakins, Jr.: Well, in the --
Justice Byron R. White: Now, does that now -- does the proviso protect an agreement between the union and the employer?
Mr. W. D. Deakins, Jr.: I don't think it does, no sir.
Justice Byron R. White: Which says that this work that's now being done here will continue to be done here.
Mr. W. D. Deakins, Jr.: I don't think that would be long.
Justice Byron R. White: Even though there's a -- an expressed exemption for (Voice Overlap) --
Mr. W. D. Deakins, Jr.: Work to be done at the jobsite, that's right.
It's not work that could be done at the jobsite Your Honor, and that --
Justice Byron R. White: Well, I know but here's some work that is being done at the jobsite.
Is being done and the question is, may the employer and the union agree that it will no longer be done whether that will continue to be done at the jobsite?
Mr. W. D. Deakins, Jr.: Well, we -- well, it is our position that the statute would make that an unlawful provision.
Justice Abe Fortas: Your position as I understand it is that the only kind of exclusionary provision that would be lawful would be when it says to the employer, you may not have work done on the jobsite by anybody other than this union.
Mr. W. D. Deakins, Jr.: That's right.
Justice Abe Fortas: And if that -- that is the total scope of permissible activity of that type under the statute.
Mr. W. D. Deakins, Jr.: I think that's right.
And I think that the question is, what did Congress intend to eliminate.
It was a matter of -- there are things such as technological advantages and advancement that all make for more work and of course, we don't consider those things.
The Congress does when they speak of these things and discuss these.
Of course, this was a compromise as you well know.
And I think my time is about running.
I want to mention briefly case Number 413.
We don't believe that the Court would ever reach -- should ever reach this point but if it does, the petitioner believes that the court below has reliance on Denver Building Trades Council where it said that when Local 13 -- 113, that was the one at Corpus Christi, engaged in an unlawful activity.
It was coursing Armstrong not for its own benefit but for the benefit of another Local, that's Local 22 at Houston, at the expense of a neutral employer.
And that was the man who sent the pre-mitered fittings onto the jobsite.
Now this to me is a -- is about a finding under 8 (b) (4) (b) because what they took the language from Denver Building Trades Council and applied that here.
I thank you, Your Honor.
Chief Justice Earl Warren: Mr. Come
Argument of Norton J. Come
Mr. Norton J. Come: Mr. Chief Justice, may it please the Court.
At the threshold we have what is really a substantial evidence question as to whether or not, the substantial evidence to support the Board's finding that the union in the two instances were induced -- the refusals to handle the Thorpe and the Techalloy products had only a work preservation object to whether as Mr. Deakins is trying to suggest, they had a dual object.
Now the Board found and that -- and the relevant Board finding is on page 201 of the record that upon the entire record, we cannot agree with the general counsel that the respondent Locals were engaged in a boycott of nonunion products.
And the Board indicates in a footnote that even the trial examiner so found even though he went on to find the violation on some other ground.
While Techalloy and Thorpe were nonunion employers, either Local 22 and on Local 113 had ever refused to apply their products before the incidents in question.
It did so only in the two instances where Johns-Manville and Armstrong had the products prefabricated thereby depriving the Armstrong and Johns-Manville employees of work that they would otherwise be doing so that the --
Justice Hugo L. Black: Do you mind fitting exactly what the product was?
Mr. Norton J. Come: Yes, Your Honor.
The -- there are two products involved.
There's an aluminum band that would be fastened around insulation material to hold it on pipes.
Now cut traditionally, Johns-Manville bought this aluminum tubing in a roll.
That tubing would then be cut into bands by the Johns-Manville employees in the Johns-Manville shop in Houston.
They would do that even though Techalloy from whom the tubing was purchased was a nonunion employer.
What would happen then after the Johns-Manville employee in the shop would do the work, he would put a label which is like a posted stamp on the pipe.
And that label would have a serial number so that when the bands arrived at the jobsite, the Johns-Manville employees there by checking with the union business agent who had a list of the serial numbers, could determine whether or not that pipe had been finished in -- had been finished by Johns-Manville employees.
Now the Board found and the court below sustained the Board finding that this label or decal, although sometimes referred to as a union label, served only the purpose of enabling the union, Local 22 being the principal union here to police the no subcontracting provision of the contract which it had with Johns-Manville and Armstrong.
And this, no subcontracting provision as Mr. Deakins has indicated, flatly barred the contracting out of certain specified work including the preparation and application of pipe and boiler coverings.
And the record shows that in the past where both Armstrong and Thorpe had consistently followed the practice of letting the Johns-Manville and Armstrong employees do the finishing work on the tubing, the other product happened to be insulation covering and the finishing work involved was this.
Customarily, Armstrong would buy that in links and its shop employees would miter it.
In other words, they would cut some of it at angles and glue it together so that it could fit as I understand over the corners of certain -- of the pipes.
In the past when this finishing work had been done by the Johns-Manville and Armstrong employees, the union had shop -- the site employees of Johns-Manville and Armstrong had installed these products even though as I've indicated, Thorpe and Techalloy were nonunion manufacturers
Justice Abe Fortas: So this was work that was not customarily done on the site but was done by members of the same union.
Is that what you're telling us now?
Mr. Norton J. Come: It was done by members of the same union and by employees of the same employer, --
Justice Abe Fortas: But not --
Mr. Norton J. Come: -- John --
Justice Abe Fortas: But not on the site?
Mr. Norton J. Come: At the present time, it was not done at the site.
The record indicates that here -- that originally, this work was done at the site.
However, at least in the case of Armstrong, this -- they used a big saw for the mitering and they found that more convenient to have that saw in its shop in Houston and -- so that insofar as the incidents involved in this case are concerned, both of the finishing work was done by Armstrong or Johns-Manville employees off the site in their shops in Houston.
Justice Abe Fortas: And what happened in these cases was that in both instances that is to say the miter, asbestos and the metal bands --
Mr. Norton J. Come: Yes.
Justice Abe Fortas: -- the contractor wanted to have the material prepared on mitered and cut.
Mr. Norton J. Come: The union --
Justice Abe Fortas: supplied to manufacture?
Mr. Norton J. Come: Well in the two instances and there were only two.
There was a third instance where -- involving Armstrong, where it didn't come to the job with the decal but the union on checking found out that it had actually been finished in an arm -- in Armstrong shop and when it got a letter from Armstrong saying that it was finished, they didn't refuse -- I mean, they then proceeded to install it.
So we're talking about two instances over a long period in time, the only two instances in which Armstrong and Johns-Manville got the products prefinished.
Those two instances, the union induced Johns-Manville and Armstrong employees on the job not to handle them because they were in violation of the no subcontracting provision of the contract.
Justice Abe Fortas: So that this really does represent a sort of a different situation or variation on the theme that is to say that here, the union's objective is to protect not on the site work but work by members of the same union employed by the same employer but done in the employer's plant rather than on the site.
Am I correct?
Mr. Norton J. Come: That is correct.
But in our submission, that does not make a relevant difference as I will attempt to show.
I think it would make a difference if we were dependent upon a proviso to 8 (e) for the legality of a -- of the union's action.
But since as I will attempt to show we are not -- I argue with it, it does not make a difference.
Now, in the light of the evidence which I have just sketched in, I think that it is abundantly clear that there is substantial evidence to support the Board's finding which was sustained by the Court of Appeals and was even the finding of the trial examiner even though he found a violation on some other ground that the unions here did not have a dual object, work preservation, and hitting the product, they had only one object, namely, work preservation.
The record further shows that they installed other instances prefab products that were nonunion.
Other cases, they refuse to install them even if they were a union.
It depended --
Justice Byron R. White: But what the -- Mr. Come, what is the --
Mr. Norton J. Come: Yes.
Justice Byron R. White: Let's assume that there was a dual purpose.
Let's assume we disagreed with you and said there wasn't substantial evidence, that there was -- that really there was a dual purpose here.
Have you lost your case then?
I mean, assume that the -- it was aimed at the product but of course there was work preservation?
Mr. Norton J. Come: Well, it depends, Your Honor as to how we define a dual object.
I mean there, of course, I mean the statute says, “an object”.
And there are a lot of cases that hold -- that even if the union had a lawful object that that is coupled with an unlawful one, its conduct is bad.
On the other hand, there is also this problem that let us just take the clearest case of primary activity where you put a picket line up in front of a primary plant.
Now -- and the pickets there try to turn away suppliers who come to that plant.
Now, in a sense, you might say that they have an object there of forcing a cessation of business.
Now in that kind of a situation, you'd -- would however, would not regard that kind of a dual object as a violation of the statute.
I mean the -- it's usually referred to as merely an incident of lawful primary activity.
So that I think really what you have -- basically, what you have to decide is whether you got here a conduct that is essentially a lawful primary activity.
And if you're satisfied that it is, then any effects on the secondary or the -- or any -- toward a cessation of business is regarded either as an incident or as a hope or an expectation.
It isn't --
Justice William J. Brennan: Well, is that consistent Mr. Come with the statutory language “an object”?
Mr. Norton J. Come: Well I think that if --
Justice William J. Brennan: If -- I gather, your -- this argument's on the premise that concededly there is among objects and unlawful objects whether it predominates or not unimportant.
Now, on the face of the statute "an objects", it seem to --
Mr. Norton J. Come: Well I would say that if it were a primary, it would not be an unlawful object.
Justice Byron R. White: But Mr. Come, in your case, you say the picket line where the product deliveries or supplies were interrupted.
It's only done for some other further reason to get a -- just the kind of an agreement with the employer that you want to get.
And it's only a temporary matter stopping those products.
In this case, the -- whether you call it work preservation or not, there -- what the employee wants to do -- the union wants to do is permanently (Inaudible) the delivery of this kind of a product to this plant, not only for that -- an hour tomorrow but for all and you can say their object as work preservation but the other side of the coin is that -- it is that if the work is preserved, these goods are stopped forever.
Mr. Norton J. Come: Well, that kind of situation --
Justice Byron R. White: That's an incident, maybe you'd call that an incident.
Mr. Norton J. Come: I think I would call that an incident.
The Court of Appeals called it a hope or an expectation.
I think that you've got to put that kind of loss on it in order to preserve activity that you're going to deem to be legitimate primary activity.
Otherwise, you're going to be knocking out primary strikes.
You're going to be -- I think putting fiber board as you pointed out in a very, very small ballpark because in any time that you prohibit subcontracting for example, you are going to be affecting --
Justice Byron R. White: Well, why would you then --
Mr. Norton J. Come: -- business relations.
Justice Byron R. White: How would you exclude from the reach of 8 (b) (4) then or how is -- wouldn't you give the same answer if the union came to the employer and said, “By the way, you've been using A's products all these years but we just happen to have bought B.
We are in business now, the union is and we think you ought to use B's products.
And so we're going to strike until you use B's products.”
Mr. Norton J. Come: Well, I don't know.
That would look to me to be more secondary than -- because there, the Union does not have the justification that it has in this case of really protecting --
Justice Byron R. White: Well, that (Voice Overlap) --
Mr. Norton J. Come: -- the working conditions of the employees of the employer --
Justice Byron R. White: Well, isn't that -- well then let me -- you would say that was probably a violation there.
Mr. Norton J. Come: Yes, Your Honor.
Justice Byron R. White: Let me give you a different one then.
An employer has always been using prefabricated doors and the carpenters have been installing these doors and they just decide "Well, we'd have a lot more work but this employer didn't use prefabricated doors.
So they say, they strike and they say quit using them.
Quit buying these doors.
We're going to make the doors on the job.
Mr. Norton J. Come: I would probably say that that was primary because there was --
Justice Byron R. White: So you have to with your argument, don't you?
Mr. Norton J. Come: Yes.
I think I do.
But the fact remains that on this record, I submit, there is no reason to treat it any differently than the Court would -- a substantial evidence case which under Universal Camera where the Board's findings have been sustained by the Court of Appeals to go beyond them.
Because I think that I've demonstrated that looking at this record as a whole, there is ample evidentiary support for the Board's finding that --
Justice Byron R. White: But the Board didn't -- the Board would recognize I suppose like you seemed to that the consequence of the successful strike is the permanent stoppage of the -- of this product from being bought by these employers.Do you say that wasn't fair object but it certainly is a consequence.
Mr. Norton J. Come: That maybe a consequence but that is a consequence that flows from a lot of primary activity.
And if you're going to interpret 8 (b) (4) (B), and I believe that the proviso that you referred to Justice White that was added in 5199 --
Justice Byron R. White: There's a lot of primary activity results in interruptions of products but it's only temporary.
This is -- object is the -- the consequence is a permanent stoppage or interruption of the -- of purchasing of these products.
Mr. Norton J. Come: Well, I suppose that that would apply though even in where you had purely a service involved in your band subcontracting.
Now, I think Mr. Justice Fortas raised the point that the position that my opponent is arguing for and that Mr. Mahin has argued for really in the sense stands the statute on its -- well, it lead -- at the least leads to this anomalous result that certain unions in particularly those in the service industries would be able to protect against the loss of work that they have traditionally performed.
Of course, the most common example of that is the Teamsters who were involved in that kind of thing whereas other unions like those in the construction trades here, who when they lose work, it ends up in a product are powerless to protect themselves against it.
Now it may be that the social cost of that is so great that Congress might in time want to do something about it.
And as a matter of fact, Representative Alger in 5199 had a Bill.
In there, they would have just made it unlawful to keep prefabricated products out of the area which of course was not adopted.
But the point is -- the point that we're making is that this statute 8 -- that -- and that Congress neither in 1947 nor in 1959, undertook to resolve that problem into the secondary boycott provisions or the hot cargo provisions of the National Labor Relations Act.
And I think that the reason is obvious and one that this Court alluded to in the Sand Door case.
Namely, that the history of this labor legislation particularly when you get down to the question of picketing and what are the permissible economic weapons that a union can use and then you add to that effect that what's involved is jobs and loss of work generated so much heat from the contending enforcers that Congress went very, very slowly.
And therefore, it cautions against attributing to Congress more than the clearest evidence that it has given.
And the legislative history particularly of the ‘59 amendments indicates that the thing that they were after in enacting 8 (e) was the hot cargo agreement.
Now what they thought (Voice Overlap) --
Justice William J. Brennan: Teams -- they're just the -- they were just after the Teamsters Union, is that what you're saying?
Mr. Norton J. Come: No, they were not just after the Teamsters Union although the Teamsters Union was the impetus for it.
But it -- the history is this.
The Senate Bill, one that emerged from the Senate committee, had no provision.
On the floor –-
Justice Potter Stewart: We're now in 1959?
Mr. Norton J. Come: In 1959, I'm talking about 1959.
Justice Potter Stewart: Yes.
Mr. Norton J. Come: Senator Gore on the floor added on 8 (e) limited to the trucking industry.
And it was the Teamsters that were used as the example.
Senator Kennedy acknowledged that that problem needed to be taken care of and he went for it.
He accepted the amendment.
And the Senate Bill was amended on the floor to give you an 8 (e) provision limited to carriers under the regulation of the ICC, I mean the motor carriers.
In the House, the Landrum and Griffin, and of course, Senator Goldwater in the Senate thought that it wasn't enough to just cover hot cargo agreements and they keep using this term over and over again and Senator Goldwater defines it as Mr. Manoli defined it in the classic sense where you're refusing to handle the products of some other person who you have a dispute with or you've labeled as unfair.
Justice Byron R. White: The who in your example means the Union.
Mr. Norton J. Come: The Union.
Justice Byron R. White: Yes.
Mr. Norton J. Come: Yes.
Justice Byron R. White: Or -- and the Union --
Mr. Norton J. Come: Yes.
Justice Byron R. White: -- is compelling other employees not to handle products with which the Union has -- where the Union has a dispute of that other employer, isn't that it?
Mr. Norton J. Come: And I might say that that was the case in the Sixth Circuit General Millwork case which I believe I argued.
The union ruled in that case was similar to the one in Sand Door.
I mean what it said was that only products made in factory shops or mills were members of the United Brotherhood where carpenters are employed shall be installed by fellow members.
I mean that's the kind of an animal that we were dealing with in Sand Door and in the Brotherhood case.
Well, I realized I my --
Chief Justice Earl Warren: We'll recess now, Mr. Come.
Mr. Norton J. Come: Yes.
Chief Justice Earl Warren: Mr. Come, you may continue your argument.
Mr. Norton J. Come: When we adjourned for lunch, I was making the point that the legislative history of 8 (e) shows that it was directed at a particular evil namely the hot cargo agreement or rather similar agreements that were secondary in objective.
The Senate Bill band it on the -- band the hot cargo agreement only with respect to the trucking industry in the House.
It was extended to all industries because the point was made that there were other industries besides trucking where there were these hot cargo agreements.
But every time the emphasis was on hot cargo agreement --
Justice Potter Stewart: You don't really mean cargo literally, do you?
It wasn't confined just to freight, was it?
Mr. Norton J. Come: No.
I don't mean it in the literal sense.
Justice Potter Stewart: No.
Mr. Norton J. Come: I mean a situation where you were refusing to handle goods because you had a dispute with the manufacturer who produced them or otherwise disfavored them.
Now a subcontracting clause, a clause which prohibits the subcontracting of work with the bargaining unit, historically and analytically is far different from the hot cargo clause because its thrust is not the labor conditions of some other employer but it is an effort to protect the -- in an immediate sense not in the vague sense that any union organizational effort or a secondary boycott tends to preserve organizational goals of the union.
But in an immediate sense, the working conditions that the employer and the union have bargained for with respect to the work unit that is principally involved.
There was no persuasive indication that Congress intended by this band in 8 (e) to reach that sort of an agreement.
Now to be sure, you have some expressions of fear by Senator Morris and by Representative Thompson and even Senator Kennedy at the time the Landrum-Griffin Bill was in the conference that the 8 (e) provision was so broad that it could also interdict the subcontracting clauses.But Senator Morris, first of all, was an opponent of the legislation even after it emerged from the conference and his views should be discounted for that reason.
Secondly, Senator Kennedy and Representative Thompson were talking about the Bill which at the time it went to the conference did not have any proviso of protecting primary activity.
What had happened was that in an effort to cure the loophole, some of the loopholes in 8 (b) (4) (B), the Landrum-Griffin Bill had not knocked out the word concerted in the old 8 (b) (4) (A).
And that was the thing that this Court in rice milling had hanged its head on in finding that there was an exception for primary activity.
And they were fearful that would -- that eliminated and without any express recognition of a reservation for primary activity.
If you put that together, you'd end up with a sweeping provision that covered even primary activity.
Once the Bill emerged from conference with that primary activity proviso on it, there was no more expressions of such fears from Senator Kennedy.
Justice Potter Stewart: The difficulty it seems to me with that argument is that you're not relying on the proviso in this case, are you?
Mr. Norton J. Come: Well, I am talking about the proviso to 8 (b) (4) (B).
Justice Potter Stewart: Oh, I thought you're talking about the --
Mr. Norton J. Come: No, no, I want to talk --
Justice Potter Stewart: -- proviso to 8 (e).
Mr. Norton J. Come: I want to talk about the 8 (e) proviso.
And I was talking about the 8 (b) -- the proviso to 8 (b) (4) (B) that says that nothing herein shall be construed to interdict the primary strike or primary picketing which this Court referred to in the General Electric Case and in Carrier.
Now, under my interpretation then, namely, that this prior work preservation clauses or I see my --
Chief Justice Earl Warren: Well, state your (Inaudible)
Mr. Norton J. Come: Yes.
What room is there left for the proviso to 8 (e) which attempts to preserve onsite work in the construction industry.
It's our position that what Congress was aiming at there was to preserve for the construction industry certain agreements that were secondary in nature.
The most common form is the kind that you had in the Denver Building Trades case where the general contractor enters into the union, a contract that he shall employ only the union subcontractors on the job.
Now, that agreement is a secondary agreement because the -- that this Court held in Denver that the subs are independent entities.
And now, under 8 (e) without the proviso, that kind of an agreement would be illegal in the construction industry.
Originally, they wanted to go further and permit not only that kind of an agreement, but a strike to enforce it, in other words, completely overruled Denver Building.
They weren't able to get that.
They drew the line at continuing to permit the agreement of the illegal but not let the construction industry enforce it by strike pressure.
And the significance of limiting it to onsite work is that they didn't want to permit the construction industry, however, to use that proviso for the purpose of unionizing suppliers who happen to deliver stuff to the jobsite.
And -- but that is not this case because this product here or “these products” if you may call them as such, were not disfavored for that reason.
As I pointed out, the record is perfectly clear that the union handled them when the finishing work was left for their shop employees to perform.
Now, there's another issue in the case which I do not have time to deal with for the reasons that we've indicated in our brief, on that, a part of the case we submit that the Court here in finding that the activity by the sister union was secondary since it was confined to the primary employer who was not a neutral, that activity was likewise primary activity.