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Eichleay Corp. v. National Labor Relations Board

August 26, 1953

EICHLEAY CORPORATION, PETITIONER,
v.
NATIONAL LABOR RELATIONS BOARD, RESPONDENT.



Author: Kalodner

Before GOODRICH, MCLAUGHLIN and KALODNER, Circuit Judges.

KALODNER, C.J.:

The instant case is one of many*fn1 growing out of a running jurisdictional dispute between the United Brotherhood of Carpenters and Joiners of America (Carpenters) and the International Association of Machinists (I.A.M.). Petitioner, Eichleay Corporation (Eichleay) was engaged in the performance of an independent contract to alter a hot mill for the American Brass Company in Kenosha, Wisconsin. In the performance of this contract, it was necessary to employ men to dismantle and remove or to erect and install machinery. A representative of Lodge No. 34, I.A.M., filed a charge with the Board, charging that Eichleay was discriminating in regard to the hiring of employees because of their membership in Lodge No. 34 and was granting preference to members of the Carpenters. Pursuant to that charge, a complaint was issued by General Counsel, charging a violation of Section 8(a)(1) and (3) of the Act.*fn2 The Board found that Eichleay had violated those sections by entering into and enforcing an oral agreement or understanding conditioning the hire and tenure of employment of millwrights upon membership in the Carpenters Union. The Board therefore ordered Eichleay to cease and desist from thus violating the Act, to post notices at its main office at Pittsburgh, Pennsylvania and at its project in Kenosha, Wisconsin, and to notify the Regional Director within ten days from the date of the order as to what steps it had taken to comply therewith. 102 N.L.R.B. No. 63.

The case is before this Court upon the petition of Eichleay to review and set aside the aforementioned order. In its answer the Board has requested enforcement.

Eichleay contends that it was not engaged in interstate commerce and that the Board therefore had no jurisdiction; that the Board's findings on the merits are not supported by substantial evidence; and that an affirmance of the order of the Board would not effectuate the policies of the Act. Its contentions will be discussed in the order stated.

Jurisdiction

With respect to the question as to whether Eichleay was engaged in commerce*fn3 within the meaning of the Act, the record discloses that it transported over state lines about $20,000 worth of small tools. Four key men on the project were brought in from outside Wisconsin. Eichleay contends that $20,000 represents only 2% of the total value of the contract between it and American Brass, and that four men are only a small percentage of the total number of employees involved in the project.

In enacting the Labor-Management Relations Act Congress sought to exercise fully its power over interstate commerce.*fn4 The limits of that power are not to be defined solely by the extent of interstate activity involved in the particular case over which it is being asserted. In Polish National Alliance v. N.L.R.B., 322 U.S. 643, 648 (1944), Justice Frankfurter, speaking for the Court, said:

"Whether or no practices may be deemed by Congress to affect interstate commerce is not to be determined by confining judgment to the quantitative effect of the activities immediately before the Board. Appropriate for judgment is the fact that the immediate situation is representative of many others throughout the country, the total incidence of which if left unchecked may well become far-reaching in its harm to commerce."

Cf. N.L.R.B. v. American District Telephone Co. of Pa., 205 F.2d 86 (3rd Cir. opinion filed June 8, 1953).

On that score the record establishes that Eichleay, at the time of the hearing before the trial examiner, had similar contracts with other large companies in eight other states. Furthermore, the written agreement by which Eichleay agreed to "recognize the jurisdiction claims of the United Brotherhood of Carpenters and Joiners of America" was an "International Agreement," in effect in all the localities in which it was performing similar services. That circumstance, together with the fact that so many other Courts have had virtually identical factual situations before them within the past two years,*fn5 makes inescapable the conclusion that "the immediate situation is representative of many others throughout the country ...," Polish National Alliance v. N.L.R.B., supra. Moreover, as this Court has observed in another case involving the construction industry:

"One small stoppage may not have an immediately perceptive effect upon the flow of the whole stream. Buy many small stoppages will have such effect ... the power to regulate is not lost because of the small size of any individual contribution." Shore v. Building and Construction Trades Council, 173 F.2d 678, 681 (3rd Cir. 1949).

We conclude therefore that the Board had jurisdiction over Eichleay.

The Merits

Eichleay contends that the record as a whole does not substantiate the Board's conclusion. The following is a description of the hiring practices complained of, as appears from the uncontradicted testimony in the record:

On July 8, 1948, Eichleay and the United Brotherhood of Carpenters and Joiners of America entered into an agreement providing that the former agreed "to recognize the jurisdiction claims of the ... Carpenters ..., to work the hours, pay the wages and abide by the rules and regulations established or agreed upon by the Carpenters ... of the locality in which any work ... is being done, and employ members of the ... Carpenters ... In consideration of the foregoing, the ... Carpenters ... agree that no stoppage of work or any strike of its members, either ...


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