National Labor Relations Board v. Local 825, International Union of Operating Engineers/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice STEWART concurs, dissenting.

If we take the words of the Act, rather than what the courts have interpolated, and lay them alongside the facts of this cause, I do not see how we can fairly say that Local 825 engaged in an 'unfair labor practice' within the meaning of § 8(b)(4)(B). Local 825 did use coercion to get jobs from White for its workers. The Board termed it 'causing a disruption of the business relationship among the various employers at the jobsite,' which it held was within the ban of § 8(b)(4)(B) since Local 825's aim, though not 'a total cancellation of a business relationship' with White, constituted a 'cease doing business' purpose. The Board said: 'an object of the Respondent was to force Burns to cease doing business with White, and to force Chicago Bridge and Poirier to cease doing business with Burns in order to compel Burns to cease doing business with White.' 162 N.L.R.B. 1617, 1621 1622.

Yet as the Trial Examiner found: 'Respondent never indicated it wanted White off the job-it wanted to harass White to gain compliance with its requests. Nor was any demand made upon Burns to cease doing business with White. * *  * All Respondent wanted was the work, not a substitution of contractors nor a termination of contractual relationships between the contractors.'

Our question turns not on the findings of fact but on the question of law which emerges, whether what was done had as its purpose to induce the general contractor and subcontractor to 'cease doing business' with White.

We held in NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675, 688, 71 S.Ct. 943, 951, 95 L.Ed. 1284, that an effort 'to force' a subcontractor in the position of White 'off the job' satisfied the 'cease doing business' test though that purpose was not the exclusive one. A strike to achieve that end, we held in International Brotherhood of Electrical Workers, Local 501, A.F. of L. v. NLRB, 341 U.S. 694, 700, 71 S.Ct. 954, 957, 95 L.Ed. 1299, also brought the coercive means within the same ban. And in United Steelworkers of America, AFL-CIO v. NLRB, 376 U.S. 492, 496, 84 S.Ct. 899, 902, 11 L.Ed.2d 863, we held that a union on strike against an employer, Carrier, had not violated the 'cease doing business' ban, when it picketed at an entrance used exclusively by railroad personnel 'to induce the railroad to cease providing freight service to Carrier for the duration of the strike.'

The case here is plainly different. The aim was not to freeze out White or to close it down for an hour or for the duration. It was merely to get the work, whose assignment it controlled, for members of Local 825. The case is therefore the classic jurisdiction conflict covered by § 8(b)(4)(D) which makes 'forcing or requiring any employer to assign particular work to employees in a particular labor organization' an unfair labor practice.

The Board properly issued a cease-and-desist order concerning the jurisdictional dispute condemned by § 8(b)(4)(D). The fact that (D) may be involved does not necessarily mean that (B) may not also be involved, as the two are not 'mutually exclusive.' Local 5, Plumbing & Pipe Fitting Industry, 137 N.L.R.B. 828, 832. But where the facts show only the jurisdictional dispute condemned by § 8(b)(4)(D) and no plan to close down White either permanently or for a day or even an hour, we should not only hold that § 8(b) (4)(B) is not satisfied; we should also hold that (D) cannot do service for (B) where there is no element of 'ceasing' to do business present.