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Shore v. Building and Construction Trades Council of Pittsburgh

March 4, 1949


Author: Goodrich

Before GOODRICH, WALLER and MCLAUGHLIN, Circuit Judges.

GOODRICH, C.J.: This is an appeal by five labor organizations from an injunction given against them by the District Court to restrain certain alleged unfair labor practices. The injunction was given pursuant to Section 10(1) of the Labor-Management Act of 1947, better known as the Taft-Hartley Act.*fn1 At the outset the appellants challenge the jurisdiction of the court because, they say, the facts of the case do not present anything within the power of Congress to regulate.

So far as the jurisdictional aspects of the facts are concerned they are subject to little dispute and may be briefly stated.

The Dill Construction Company (Dill) was the general contractor for the construction of an open-air drive-in theater in Bridgeville, Pa. The electrical work was subcontracted by Dill to a partnership firm known as Petredis and Fryer. This firm has brought the charge here in question. It is to be noted that the customer was a Pennsylvania customer, the construction that of a local theater, and the general contractor and the sub-contractor here involved were Pennsylvania business concerns. How, then, does the Taft-Hartley Act have anything to do with the matter?

On behalf of the National Labor Relations Board it is pointed out that in this Act, as in the Wagner Act, Congress has endeavored to exercise the commerce power given to it under the Constitution, so far as that power will reach.*fn2 Not only are labor practices which occur during the actual conduct of interstate commerce regulated, but regulation is likewise extended to certain acts which may "affect" interstate commerce.*fn3 In the past decade the Supreme Court has told us in a series of decisions applicable to various aspects of Federal legislation, how wide the power under the commerce clause is.*fn4 Artificial divisions previously established between such things as production, manufacturing and transportation have been swept away. And, as Mr. Justice Frankfurter pointed out in the Polish National Alliance case, what affects interstate commerce is a matter of practical judgment.*fn5

On behalf of the Board there was evidence here produced to the effect that 90% of the Dill Company's business is the building of commercial and industrial projects. In 1948 one third of the materials bought by it through local suppliers originated in states other than Pennsylvania. Some of these materials were purchased specifically for use on this Bridgeville theater project.Figures were also given of the proportion of the out-of-state supplies which were bought by the suppliers themselves. The same was shown for Petredis and Fryer, the complainants in the present litigation. It was likewise shown that certain out-of-state supplies were shipped directly to the Bridgeville theater from various points to be used in its construction. The Board points out to us, likewise, that according to the latest available figures, 53% of the establishments engaged in the construction industry did an annual business of less than $5,000 for each establishment.*fn6 It was likewise pointed out that in 1946 the total value of new construction in the United States was over ten billion dollars.*fn7

All of this argument adds up to the conclusion that what affects the building industry in a given community affects interstate commerce and that the total effect of a ten billion dollar industry on interstate commerce is obviously very appreciable. One small stoppage may not have an immediately perceptible effect upon the flow of the whole stream. But many small stoppages will have such effect. And like the small amount of grain in Wickard v. Filburn,*fn8 the power to regulate is not lost because of the small size of any individual contribution. We reach the conclusion that it cannot be denied that Congress may, through its power to regulate what affects interstate commerce, regulate labor practices in industries which are themselves dependent on interstate commerce. That Congress has done so in the Act regulating labor relations is established.*fn9 There is no escape, therefore, from the answer that the power is there and Congress has chosen to exercise it.*fn10

We pass, therefore, to the question whether there is sufficient here to justify the issuing of the injunction, it being clear that the court has power to do so in a proper case. It is to be noted that the District Court was not required to find the charges made to be true, but to find reasonable cause to believe them to be true. Our function is, of course, not to find that the charges made are true or untrue, but to determine whether the court was clearly erroneous in finding reasonable cause to exist.

There was evidence to indicate the following facts. The employees of the electrical contractor, Petredis and Fryer, were members of the United Construction Workers which is a branch of the United Mine Workers of America. The other subcontractors employed members of A.F. of L. building trades unions and it is the carpenters and sheet metal workers with whom we are concerned here. Two carpenters and one sheet metal worker were at work on this job on August 30, 1948. On that day a Mr. Hackett, the business agent for Local No. 5 of International Brotherhood of Electrical Workers, an A.F. of L. union, appeared at the theater site and questioned the workmen on the job. The net effect of his conversations with the carpenters and the sheet metal worker was that they left the job after consulting the business agents of their respective unions, and no further work was done for at least three days thereafter. The reason for the work stoppage was the fact that the A.F. of L. unions refused to recognize the non-A. F. of L. union men working for Petredis and Fryer.

We think it clear that the District Court was not in error in concluding that there was reasonable ground that there was coercion. There is evidence that Hackett asked Tyler, the sheet metal worker, if he was going to continue to work on the job with "this electrical firm." Tyler replied, "Not if it means I have to pay a fine." Whereupon Hackett suggested that Tyler call his own business agent. Tyler did so and then left the job. Similar action was taken by the carpenters. We think that coercion may be found in the relationship between the union officers and the men on the job. We think it is clear, also, that all three men could have been found to have left the job before the conclusion of the day's work and that the cessation of work for three days thereafter constituted a concerted refusal to work.

The case is not moot. It is true that the construction of the theater has long since been completed. But there is reasonable grounds for belief that there was an unfair labor practice. The defendants say that they are not legally liable for doing what they did and certainly indicate no lack of intention to do the same thing in the future. It is clear as a general proposition of equity that the granting of an injunction is not foreclosed because the act feared has already happened, if there is reasonable ground for believing that it will be done again.*fn11 And the defense that there is no longer need for an enforcement order because the complained of practices have, at least temporarily, ceased is one that has been threshed out many times in labor cases where it was the employer and not the union who made the point.*fn12 The current of authority is pretty uniform in rejecting this reason for refusing relief. Those decisions are in point here.

Appellant's final point is that there is no evidence in the record to support the injunction against the Building and Construction Trades Council of Pittsburgh and the International Union of Operating Engineers, Local No. 66, 66-A, 66-B and 66-C. As to the Council, we think the record shows reasonable cause to believe that it was concerned in the practices here complained of. The A.F. of L. unions for the carpenters, sheet metal workers, electricians and operating engineers are all members of the Council. The business agent for the electricians, in arranging for the meeting with Mr. Ridilla, the general contractor, after the work stoppage, told him that the Building Trades Council wanted to meet with him. At the meeting the business agents of the above unions were present. We think that the participation of these constituent unions in the conference and work stoppage in the name of the Council is sufficient to show reasonable cause for believing the Council was involved in the matter.

Similarly the participation of the business agent of the Operating Engineers is sufficient basis for including that union as a party defendant, whether or not there was a direct work stoppage on the part of the shovel operator at the theater job. Mr. Mangold, business agent of the Operating Engineers, was at the September 3 meeting, at which the general contractor and representatives of the trades unions were present. As pointed out before, we do not at this stage pass upon the question of whether any of these defendants have been guilty of unfair labor practices. We only decide that the District Court was not clearly erroneous in concluding that there were reasonable grounds to believe such practices had taken place. It may be added that the complaint about the inclusion of the Building Trades Council ...

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