UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Bazelon, Chief Judge, McGowan, Circuit Judge, and Smith,* Chief Judge, U.S. District Court for the District of Montana.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SMITH
The petition to review, and the cross-application to enforce an order of the National Labor Relations Board, presents secondary activity and "struck-work ally" problems under § 8(b) (4)(i) and (ii)of the National Labor Relations Act.
McDonald Bros. Cast Stone Co. (McDonald) had as customers for its stone, Thomas B. Byrne, Inc. (Byrne), Citadel Construction Company, Inc. (Citadel) and Dee Brown Masonry, Inc. (Brown), all of whom were building contractors actively performing construction contracts. Laborers International Union of North America Local 859, AFL-CIO (Union), the exclusive collective bargaining representative of McDonald's employees, commenced an economic strike in support of its bargaining demands.
Traditionally McDonald sold its stone F.O.B. job site and delivered it in its own trucks driven by members of the Union. During the strike Byrne, Citadel and Brown made arrangements with independent truckers (hereafter Independents) to deliver the McDonald stone to their job sites and deducted the truck charges from the contract price of the stone. Thus McDonald continued to bear the cost of delivery.
When deliveries of McDonald stone were made by the independent truckers to Byrne in August, 1968, and Citadel in December, 1968, Union pickets appeared at the job sites carrying signs *fn1 directed to McDonald's employees and apparently to its customers. There were no McDonald employees at the job sites. When the pickets appeared some of the employees of both Byrne and Citadel quit work and did not return for some time. Charges were filed against the Union by Byrne and Citadel. In March, 1969, Brown, who was ready to place stone, was advised by the Union agents that the Union was "going to picket the stone whenever and wherever the opportunity presented itself" and was going to picket "the stone if it arrived at the job." A picket equipped with a sign *fn2 stationed himself in a motor vehicle across the street from the Brown job site. Brown filed charges with the Board.
The Union claimed that Byrne, Citadel and Brown were "allies" of McDonald and that its picketing was therefore primary and permitted. The Board rejected this contention and held that the contractors were neutral secondary employees and the picketing and threats of picketing did violate the Act. *fn3
We reject the contention of the Union that Byrne, Citadel and Brown were "struck-work allies" of McDonald because they made the arrangements with the Independents to have the stone delievered. We agree with the Board's conclusion that Byrne, Citadel and Brown were neutral secondary employers. We hold that the Independents were "struck-work allies" of McDonald. We reject the Board's reasoning that the delivery of the stone was not "struck-work" because the arrangements for the delivery were not made by McDonald.
We hold that any employer whose employees are performing work which would normally be performed by striking employees is an ally of the struck employer and that the work being done is struck work and that it is not important how the ally gets that work. In Douds v. Metropolitan Federation of Architects, etc., 75 F. Supp. 672 (S.D.N.Y. 1948), the court laid heavy emphasis on the economic effect of the work performed by the ally's employees. Thus the court said:
The evidence is abundant that Project's employees did work, which, but for the strike of Ebasco's employees, would have been done by Ebasco. The economic effect upon Ebasco's employees was precisely that which would flow from Ebasco's hiring strikebreakers to work on its own premises. The conduct of the union in inducing Project's employees to strike is not different in kind from its conduct in inducing Ebasco's employees to strike. If the latter is not amenable to judicial restraint, neither is the former. In encouraging a strike at Project the union was not extending its activity to a front remote from the immediate dispute but to one intimately and indeed inextricably united to it.
In the Royal Typewriter case (NLRB v. Business Machine, etc., 228 F.2d 553 (2 Cir. 1955)) the court held the independent repairmen who performed the struck work to be allies. In that case Royal told the customers to whom it was contractually obligated to render repair service to call an independent repair company and to then bill Royal for the services. In only one case did Royal make the arrangement directly. The court noted these facts and then said: "It is obvious, however, that what the independents did would inevitably tend to break the strike."
In terms of the realities of the labor dispute it makes no difference who makes the telephone call which brings into the dispute those who do the struck work. Those who do the work which the striking employees would otherwise do are the ones who alter the pressures involved in the struggle -- it is they who are involved in the dispute and it is their employer who is the "struck-work ally."
The question then arises, did the customers become allies by calling on the Independents to deliver the stone? We think not. The struck work was the work done on the stone from the beginning of its processing through its delivery. Any customer could order the stone, before or after the strike, and by reason of the protection afforded by § 8(b)(4) of the Act be free from any pressure directed to his own employees to cause them to cease handling the stone. National Woodwork Mfg. Assn. v. NLRB, 386 U.S. 612, 18 L. Ed. 2d 357, 87 S. Ct. 1250 (1967); NLRB v. Dallas General Drivers, etc., Local No. 745, 264 F.2d 642 (5 Cir. 1959); NLRB v. Wine, Liquor & Dist. Wkrs., 178 F.2d 584 (2 Cir. 1949). By buying the stone a customer does not become an ally of the supplier nor does he forfeit his § 8(b)(4) rights. It follows that if a customer does not become an ally of a ...