Before MAJOR, Chief Judge, KERNER and FINNEGAN, Circuit Judges.
This is a petition filed pursuant to Section 10(f) of the National Labor Relations Act, as amended (61 Stat. 136, 29 U.S.C., Supp. IV, Secs. 151, et seq. ), to review and set aside an order of the National Labor Relations Board dismissing an unfair labor practice complaint issued upon charges filed by petitioners. The Board's decision and order are reported in 90 NLRB 542.
Petitioners are engaged in various phases of the building and construction business in Joliet, Illinois, within this Judicial Circuit. Petitioner Joliet Contractors Association (sometimes referred to as the Association) is a non-profit Illinois corporation composed of some twenty-two general contractors engaged in the construction and repair of industrial, commercial and residential buildings, and some forty-four specialty or subcontractors. The Association also includes in its membership two glazing contractors who install glass and perform all of the glazing services in building construction in Joliet and vicinity, generally under sub-contracts with general contractors. The Association was the collective bargaining agency for all its members, including the glazing contractors. The remaining petitioners, corporations and partnerships, are lumber and building material dealers engaged in purchasing, warehousing and selling lumber and building materials, including preglazed materials, to contractors in the Joliet area.
The Board's complaint, filed October 5, 1948, was directed against Glaziers' Union, Local No. 27 of the Brotherhood of Painters, Decorators, and Paper Hangers of America (hereinafter referred to as the Union) and its agents, George H. Meyers and John R. Hoffman. It alleged violations of Sec. 8(b)(1)(A) (Union restraint of employees' rights to organize and bargain collectively) and Sec 8(b)(4)(A) (secondary boycott) of the Act.
Pursuant to Sec. 10(1) of the Act, the Board, on September 9, 1948, petitioned the United States District Court for the Northern District of Illinois for an injunction against continuance of the Union's secondary boycott, pending final adjudication of the Board. The court, after hearing, granted the injunction.
The case was heard by a Trial Examiner for the Board in December, 1948, and January, 1949, and on July 18, 1949, the Trial Examiner filed an intermediate report which contained detailed findings relative to the activities and conduct of the respective parties. Predicated thereon, the Examiner concluded that the Union and its agent Meyers had engaged in unfair labor practices within the meaning of Sec 8(b)(4)(A) of the Act, and that such unfair labor practices affected commerce within the meaning of Sec. 2(6) and (7) of the Act. The Examiner exonerated the Union's agent Hoffman from all charges and the Union on the charges predicated upon Sec. 8(b)(1)(A) of the Act. The Examiner recommended issuance of an order by the Board directing that the Union and Meyers, its business agent, "Cease and desist from engaging in, or inducing or encouraging the members of Local No. 27 to engage in, a strike or a concerted refusal in the course of their employment to perform services for any employer, where an object thereof is to require their employer or any other employer or other person to cease doing business with any member of the Joliet Contractors Association, or any other employer who uses or sells preglazed sash, or has used or sold preglazed sash."
On June 26, 1950, the Board dismissed the complaint and in its decision stated, "We find merit in the Respondents' contention that because the operations of the Employers involved herein are essentially local in character, the Board, in the exercise of its discretion, should decline to assert jurisdiction," and "we find that it would not effectuate the purposes or policies of the Act to exercise jurisdiction in this proceeding." Motions for reconsideration of the Board's order of dismissal, filed by its General Counsel and by the petitioners (charging parties before the Board), were denied by the Board.
The contested issues before this Court as stated in the Board's brief, are:
"1. Whether, in cases involving the building and construction industry, the Board has the discretionary authority, which it has in all other cases, to decline jurisdiction where the impact of the dispute on commerce is relatively insubstantial.
"2. Assuming that question '1' is answered in the affirmative, whether the Board properly exercised this discretionary authority here."
Petitioners do not seriously challenge the contested issues thus stated, although they do argue that Congress by the amended Act of 1947 gave the Board a clear mandate to hear and determine all secondary boycott charges in the building industry. In any event, it is contended that the Board's discretion, if any, is of an extremely limited nature. In the view which we take of the situation, it will not be necessary for us to reach petitioners' contention in this respect.
Assuming that the contested issues as stated by the Board are correct, we think they fall short of reaching the basic issue for our determination. More specifically, assuming that the Board has the discretionary authority "to decline jurisdiction where the impact of the dispute on commerce is relatively insubstantial," the more basic issue is whether the Board employed a correct yardstick or standard in evaluating such impact. And whether the Board properly exercised its discretionary authority in turn depends upon a solution of this issue.
There is no dispute as to the facts as found by the Trial Examiner and as disclosed by the record. As shown, the Board in dismissing the complaint took no issue with the Trial Examiner as to the facts. Thus, the Board's dismissal raises legal rather than factual considerations.
In view of the situation so far related, it appears material to relate the facts insofar as they bear upon the impact on commerce resulting from the activities of the Union, admittedly a secondary boycott in violation of the Act. The membership of the Union is composed of men who glaze windows, doors and other building materials - they put in the glass. It includes within its jurisdiction the entire metropolitan Chicago area, including the Joliet area. The Joliet Glass and Paint Company and the Porter Glass Company, members of the Joliet Contractors Association, employ only members of the Union. The latter operates a hiring hall, which the glazing contractors in the Chicago metropolitan area (including Joliet) call when they need men. Long prior to the enactment of the amended Act of 1947, the Union did not permit any of its members to work on projects that used preglazed building material. The glazing of windows, doors, storm sash and other parts of a building can be done at the site of the construction or at the factory where the particular building material is manufactured. When done at the factory, it is called preglazed or mill glazed. Contractors in the Joliet area had in the past used large quantities of building materials which had been preglazed at the factory.
The Union had in effect for many years certain "by-laws and working rules" which required that all preglazed work must be done at the site of construction. Article XVI reads, "All sash and glazing work must be done on each respective job site or building." The by-laws require an agreement between the contractor and the Union that all glass and glazing work which the contractor undertakes "shall be glazed on each respective job by members" of the Union. Article VI, Sec. 8, of the by-laws provides, "* * * the business agent shall supervise all jobs where glazing is done within the jurisdiction of Local No. 27 and enforce conditions of the agreement in all shops and on all jobs." Article IV, Sec. 5, providing for the use of a Union label, reads, "This label shall be for the use of all the members in good standing, and any member wilfully refusing to use this label or using it on sash glazed on unfair jobs or for any unfair glazing contractor, or who shall loan or give or sell to anyone, not a member of this local, or connive for the fraudulent use of the label, shall be expelled from the union without further notice."
The president of the Union testified, "there is no preglazed sash used on any union job because we object to it," and "preglazed sash never enters into the job that I know of when our men are there because we have a rule against the use of preglazed sash." He also testified, "And it is the obligation of the contractors under the contract, and also the obligation of the members, not to do any work on the job where glazing is not done on the job. * * * If a member violates that provision he is subject to disciplinary action."
A business agent of the Union testified that if they found sash on a job which did not bear the Union label, it was classified as an unfair job and that every day members of the Union leave jobs and refuse to work because the jobs do not conform to the Union rules either because the sash was glazed at the mill or glazed on the job by someone other than a member of the Union. When the general contractor refuses to go along, the glaziers stay away from the job.
The Union is affiliated with the Building Trades Council in Chicago and also with other councils in its jurisdictional area, including that in Joliet. The building trades affiliated with the Building Trades Councils in the various cities report to the Union jobs on which the glazing is not done on the site. One of the purposes of the Union's affiliations with the Building Trades Council is that the other trade unions will support the Union in enforcing its rules even to the extent of work stoppages by other crafts.
The Union rules against preglazed building material have been enforced in the City of Chicago for many years, with the result that such materials are not used in that area. It was not until 1947, however, that the Union attempted to enforce its boycott rules in the Joliet construction area. It was this attempt which marked the inception of a series of events shown in the instant controversy.
Early in January, 1947, the Joliet glazier stewards were called into the Union office in Chicago and told that from that time on they would have to live up to the Union rules 100% and that they could not do any glazing on jobs where there was any preglazed sash. In January, 1947, Paul G. O'Neill, the largest general contractor in Joliet, was constructing fifty G.I. homes, involving an investment of $300,000. Part of these houses had wood preglazed sash installed, and others had open metal sash to be glazed on the job. Union glaziers, employees of glazing contractor George Hacker, who were engaged to glaze the metal open sash, saw that some other houses had preglazed sash installed. They stopped work, called the Union vice president, Max Glass, in Chicago, and were directed to cease work until all preglazed sash was removed and new open sash installed on the whole project. Contractor O'Neill followed this direction at substantial expense, and the entire project then was glazed by the Union glaziers. Since that time O'Neill has used only open sash. He testified that his large investment did not permit the chance of further work stoppage of this type and that he would still be using the more economical preglazed sash except for the Union rule.
On March 7, 1947 and following the O'Neill work stoppage, a committee of the petitioner Association met with the Joliet Building Trades Council, the Glaziers' Union, and the glazing contractors. Mr. Max Glass, Chicago vice president of the Glaziers' Union, stated that "they had attempted to eliminate the use of preglazed sash in the Joliet Area for some time, and that the time had come when they were definitely going to eliminate it." He said that "they were going to enforce that if it was necessary to police the area." At that meeting, general contractor Joseph Girard asked Union vice president Glass what could be done about a twenty-five home project on which he had placed an order for preglazed sash. Glass told him he could use preglazed sash on that job only if he paid the Union one day glazier's pay ($17.50) cash for each of the twenty-five houses.
The contractors continued to resist the attempted ban on preglazed sash, and in June, 1947, John R. Hoffman, the Joliet business agent of the Painters Local No. 33 (affiliated with the same International as Glaziers' Union herein), arranged a meeting in Chicago with George H. Meyers (now deceased), business agent and chief executive of the Glaziers' Union. Mr. Rositch, president of Joliet Building Trades Council, and Mr. Orbison, business representative of the carpenters, Mr. Max Glass and Joliet contractors Arnold Welsch, Joseph Girard and Roy Ice were present. The contractors protested the Union ban on preglazed sash, but they were told that they would definitely have to live up to those rules in Joliet if they were to get Union glaziers. Mr. Meyers gave contractor Welsch a copy of the Union form of agreement with contractors, which contained the provision that all glazing work should be done on the job. At that meeting the Joliet contractors were told:
"* * * Mr. Glass, or Mr. Meyers told us that that condition was being enforced in Chicago, and that we would definitely have to live up to those rules in Joliet if we were to get union glaziers, and that we would have to pay traveling time and expense, and that we would definitely have to cease using preglazed or mill glazed windows."
In November, 1947, the Union glaziers refused to install plate glass on the Remiens Laboratory job because the owner had replaced some other glass over the years which had been broken out by children. Union agent, George Meyers, required that all glass be removed and reinstalled by Union glaziers before the plate glass could be set.
In November, 1947, George Hacker agreed to do the store-front glazing on the Reliable Poultry Company brick construction job on which Magnus T. Strandberg was general contractor. Hoffman refused to permit glaziers to work, because Strandberg would not sign the contract banning preglazed sash. Strandberg had been using preglazed sash.
This occurrence resulted in a meeting later in November, 1947, at the Building Trades Council in Joliet attended by representatives of the Contractors Association, including Strandberg and glazing contractor Hacker, with Hoffman, the Union business agent. At that meeting which was called by Strandberg, Hoffman reiterated that he would not let Strandberg have glaziers on the job because he had been using preglazed windows and had not agreed to stop using them. At that meeting Hoffman insisted that all of the contractors, including the glazier contractor, sign a contract with the Union containing a provision not to use any preglazed sash in Joliet, saying, "I cannot let you have men unless you agree to go along with the contract."
Thereafter, on November 19, 1947, the Joliet Contractors Association wrote the Union summarizing the demands of the Union, calling attention to the fact that the refusal of the Union to permit their members to work on jobs where preglazed materials were used amounted to a boycott and a threat to tie up all construction jobs in Joliet unless the demands were met. The letter set forth the position of the Contractors Association, including its glazing contractor members. It offered to bargain for a contract for the local glazing contractors on the basis that they would be able to do work on jobs in Joliet regardless of whether or not there was some preglazed ...