Local 833

National Labor Relations Board - Board Decisions

Jul 24, 1956

116 N.L.R.B. 267 (N.L.R.B. 1956)

LOCAL 833 267
Local 833, International Union , United Automobile , Aircraft and
Agricultural Implement Workers of America (UAW-AFL-
CIO), International Union , United Automobile, Aircraft and
Agricultural Implement Workers of America (UAW-AFL-
CIO) ; Local 2, American Federation of State, County, and
Municipal Employees , AFL-CIO; Milwaukee County District
Council No. 48, AFL-CIO; and Local 139, International Union
of Operating Engineers , AFL-CIO and Paper Makers Import-
ing Co ., Inc. and Hammill & Gillespie, Inc. Case No. 13-CC-
110. July 24,1956
DECISION AND ORDER
Upon charges duly filed on August 4, 1955, and amended on Au-
gust 23, 1955, by Paper Makers Importing Co., Inc., herein called
Paper Makers, and Hammill & Gillespie, Inc., herein called Hammill,
the General Counsel for the National Labor Relations Board, herein
called the General Counsel, by the Regional Director for the Thir-
teenth Region, issued a complaint dated August 23, 1955, against
Local 2, American Federation of State, County, and Municipal Em-
ployees, AFL-CIO ; Milwaukee County District Council No. 48,
AFL-CIO ; and Local 139, International Union of Operating Engi-
neers, AFL-CIO, herein called collectively the Respondents,' alleging
that the Respondents had engaged in and were engaging in unfair
labor practices affecting commerce within the meaning of Sections
8 (b) (4) (A) and 2 (6) and (7) of the Act. Copies of the com-
plaint, the charges, and notice of hearing Were duly served upon the
Respondents and the Charging Parties.
With respect to the unfair labor practices, the complaint alleged
in substance that on or about July 7, 1955, the Respondents induced
or encouraged employees of the city of Milwaukee, Wisconsin, to
engage in strikes or concerted refusals in the course_of their employ-
ment to transport or otherwise handle material or commodities or to
perform services with an object of forcing or requiring the city of
Milwaukee and other employers to cease using, selling, handling, trans-
porting, or otherwise dealing in the products of Kohler Co., Kohler,
Wisconsin, herein called Kohler, or to cease doing business with
Kohler and other employers. On or about September 13, 1955, the
Respondents filed an answer denying the material allegations of the
complaint and averring as a separate defense that the city of Mil-
' On August 30, 1955 , the Board issued a Decision and Order disposing of the issues
involved in the charges against Local 833, International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America (UAW-AFL-CIO) and Inter-
national Union, United Automobile, Aircraft and Agricultural Implement Workers of
America (UAW-AFL--CIO).
116 NLRB No. 37.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
waukee and the Milwaukee Harbor Commission are not "employers"
or "persons" and their employees not "employees" within the mean-
ing of the Act.
Thereafter, on September 30, 1955, all parties entered into a stipu-
lation setting forth an agreed statement of facts. The stipulation
provides that the parties waive their rights to a hearing, to the issu-
ance of a Trial Examiner's Intermediate Report and Recommended
Order, to the filing of exceptions, and to oral argument before the
Board absent Board direction of such argument. It also provides
that the entire record of the proceeding shall consist of the stipula-
tion, the charge and the amended charges, affidavits of service of the
charge and amended charges, complaint, notice of hearing hereon,
affidavits of service of complaint and notice of hearing thereon, and
the Respondents' answer to the complaint. The stipulation further
provides that upon such stipulation and the record herein provided
and on the receipt of briefs from the parties, the Board may make
findings of fact and conclusions of law, and may issue its Decision
and Order as if the same facts had been adduced after hearing, Inter-
mediate Report, exceptions, and oral argument before the Board.
By an Order issued on October 11, 1955, the Board approved the
aforesaid stipulation, made it a part of the record herein and trans-
ferred the matter to and continued it before the Board. On February
28, 1956, upon its own motion, the Board heard oral argument in
which the General Counsel and the Respondents participated.
Upon the basis of the aforesaid stipulation, and the entire record
in the case, including the briefs filed by the parties and the oral argu-
ment, the Board makes the following :
FINDINGS OF FACT
I. THE BIISINESS OF THE COMPANIES INVOLVED
(a) Kohler, a Wisconsin corporation with its principal office and
manufacturing plant located at Kohler, Wisconsin, is engaged in the
manufacture and sale of plumbing fixtures, heating equipment, elec-
trical appliances, and related products. In the conduct of its busi-
ness, Kohler annually sells and ships manufactured products valued
at more than $1,000,000 directly outside the State.
(b) Paper Makers, a corporation with its principal office at Easton,
Pennsylvania, is an importer of products, including china clay, from
various countries. It sells these products throughout the United
States. During the past year, Paper Makers imported into the United
States from foreign countries products valued at more than $1,000,000.
(c) Hammill, a corporation with its principal office at New York,
New York, is an importer of products, including china clay, from
various countries. It sells these products throughout the United
LOCAL 833 269
States. During the past year, Hammill imported into the United
States from foreign countries products valued at more than $1,000,000.
We find that Kohler, Paper Makers, and Hammill are, and at all
times material herein have been, engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act, and that it will effectuate
the policies of the Act to assert jurisdiction in this case.
H. THE LABOR ORGANIZATIONS INVOLVED
Local 2, American Federation of State, County, and Municipal
Employees, AFL-CIO, herein called Local 2; 2 Milwaukee County
District Council No. 48, AFL-CIO, herein called District Council;
and Local 139, International Union of Operating Engineers, AFL-
CIO, herein called Local 139, are labor organizations within the mean-
ing of Section 2 (5) of the Act.
M. THE UNFAIR LABOR PRACTICES
Since on or about April 5, 1954, Local 833, International Union,
United Automobile, Aircraft and Agricultural Implement Workers
of America (UAW-AFL-CIO), herein called Local 833, and In-
ternational Union, United Automobile, Aircraft and Agricultural
Implement Workers of America (UAW-AFL-CIO), herein called
UAW-AFL-CIO, have been engaged in a labor dispute with Kohler
and in connection therewith have picketed the latter's plant facilities
at Kohler, Wisconsin.
The city of Milwaukee, Wisconsin, a municipal corporation, owns,
and through its Board of Harbor Commissioners, operates the docks
and facilities for loading and unloading ships at the port of Milwaukee.
In this operation the city employs laborers represented by Respondent
Local 2, which is affiliated with Respondent District Council, and
crane operators represented by Respondent Local 139.
On or about July 7, 1955, the M.. S. Fosswm docked at- the port of
Milwaukee with a cargo of china clay consigned to Paper Makers and
Hammill and destined for transshipment by rail to Kohler, in
Kohler, .Wisconsin. Local 833 and UAW-AFL-CIO picketed the
dock where the Fossutrn was berthed. In support of this action and
to prevent the delivery of the china clay to Kohler; the Respondent
Unions induced and encouraged the dock employees of the city of
Milwaukee not to unload the Fosswm for the admitted purpose of
forcing the city to cease handling, transporting, or otherwise dealing
in the products of or for Kohler, and to cease doing business with that
2 The parties stipulated that Local 2 Is a labor organization within the meaning of
Section 2 (5) of the Act, without indicating the composition of its membership. For
the purposes of this Decision and Order we assume that Local 2's membership comprises
also individuals who are employees within the meaning of Section 2 (3). See Di Giorgio
Fruit Corporation, et al. v. N. L R. B., 191 F. 2d 642 (C. A., D. C.) cert. denied 342 U. S.
869.
270' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company. As a consequence of the dockworkers' refusal to unload the
ship, the Fossum left the port of Milwaukee on July 8, 1955, with the
cargo still on board.
Contentions of the Parties
The General Counsel contends that the city of Milwaukee falls
within the scope of the phrase "any employer" as used in Section 8
(b) (4) (A) of the Act and that the inducement of the dockworkers
and crane operators employed by the city to quit work in aid of the
dispute between other labor organizations and Kohler was therefore
violative of that section of the Act. The Respondents, on the other
hand, deny that the dockworkers are "employees of any employer"
within the meaning of the Act and therefore assert that the Respond-
ents' conduct cannot be found unlawful. The parties appear to agree
that the Respondents' conduct would constitute a violation of Sec-
tion 8 (b) (4) (A) if the dockworkers induced and encouraged not
to handle cargo destined for Kohler are "employees of any employer."
Discussion
Section 8 (b) (4) (A) provides, in relevant part, that it shall be
an unfair labor practice for a labor organization or its agents to in-
duce or encourage "the employees of any employer" to engage in a
work stoppage where an object thereof is to force or require "any
employer or other person" to cease handling the products of any
other producer, processor, or manufacturer or to cease doing business
with "any other person." The terms "employee," "employer," and
"person" are defined in the Act as follows :
Sec. 2. When used in this Act-
(1) The term "person" includes one or more individuals, labor
organizations, partnerships, associations, corporations, legal rep-
-resentatives, trustees, trustees- in bankruptcy or receivers.
(2) The term "employer" includes any person acting as an
agent of an employer, directly or indirectly, but shall not in-
clude . . . any State or political subdivision thereof... .
(3) The term "employee" shall include any employee, and
shall not be limited to the employees of a particular employer, .. .
but shall not include . . . any individual employed by an em-
ployer subject to the Railway Labor Act, ... or by any other-
person who is not an employer as herein defined.
The parties have "stipulated that the city of Milwaukee is a mu-
nicipal corporation. It is therefore a "political subdivision" of the
State of Wisconsin and as such is specifically excluded from the.
definition of "employer" contained in Section 2 (2) of the Act. Con-
LOCAL 833 271
sequently, the dockworkers employed by the Milwaukee municipality
are not "employees" as defined in Section 2 (3) because they are
employed by a "person who is not an employer" as defined in Section
2 (2). The General Counsel contends, however, that these definitions
do not control the meaning of the term "employer" as used in Sec-
tion 8 (b) (4) (A). He argues that in excluding public instrumentali-
ties from the definition of "employer," Congress intended to bar the
Board from regulating the labor relations of employees of govern-
mental bodies, but that it did not intend to exclude such bodies from
the operation of Section 8 (b) (4) (A) because in the latter, Con-
gress used the phrase "any employer" rather than "employer" thus
intending to encompass employers in the generic sense as distinguished
from the limited class defined in Section 2 (2) of the Act. The
General Counsel has thus substantially adopted the reasoning of the
Fifth Circuit Court of Appeals in the International Rice Milling
case,3 in which the court, reversing the Board, held that railroads
were covered by the term "any employer" used in Section 8 (b) (4)
(A) notwithstanding the specific exclusion of railroads from the defi-
nition of "employer" contained in Section 2 (2).
The court said (at pp. 24-26) :
The purpose of Section 8 (b) (4) (A) and (B) is to protect
commerce from injury, impairment, and interruption, by remov-
ing obstructions like the one we have here. If the Board's view
were to prevail, the industry most directly and extensively con-
cerned with commerce, the vast railroad transportation system,
would be at the mercy of ambitious unions, which could use them
as a means of forcing themselves upon plants like petitioners
where they do not have a majority status....
A close reading of the language used in Section 8 (b) (4) con-
vinces us that, by the use of the words "any employer," Congress
intended to extend the section to any and all situations relative
to the one we have before us. In this particular section, the
usage of the word "any," as applied to the term employer, is
confined solely to subsection (4). Contrasting 'the usage of the
word "any," as found in subsection (4), with the use of the in-
definite article "an," as used elsewhere in the section gives rise
to the inference, we thinki that Congress intended the word
"any" to embrace the class of employers as a whole, and not
merely those within 'the definition of "employer," as set forth
in Section 2 (2)' of the Act. ..• .'Thus, if Congress had intended
the word "employer" to mean only such employers as defined in
3lnternational Rice Milling Co. Inc V. N. L. R. B., 183 F. 2d 21 ( C. A. 5), setting aside
84 NLRB 360 , reversed 341 U. S. 665 '( certiorari not requested for this part of the court's
decision ). ' - " '
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 2 (2), it would have preceded the word by the indefinite
article "an." Since this was not done, we think it reasonable to
conclude that the word "employer," as used in Section 8 (b) (4),
was intended to >have a wider and more inclusive meaning than
the definition found in Section 2 (2).
A further reading of Section 8 (b) (4) (A) reveals the lan-
guage "forcing or requiring ... any employer or other person to
cease using, selling, handling, transporting or otherwise deal-
ing . . . ." The definition of the word "person" in the Act does
not exclude railroad companies. , The words "any employer,"'
as used in Section 8 (b) (4), appear to 'us to refer to the same
employer as described in Section 8 (b) (4) (A) by the words
"any employer or other person." Thus we see the use of the
words "any employer or other person" being used to amplify
and explain the words "any employer." Since the word "person,"
as defined in the Act, does not exclude the railroad companies,
and since it is used here in connection with the words "any em-
ployer," we think it highly persuasive of the fact that railroad,
companies were not intended to be excluded from the purview of
Section 8 (l?) (4) (A) and (B) of the Act. Noscitur a sociis:
the meaning of a word may be ascertained by reference to the
meaning of words associated with it.
In the Sprys case,4 the Board indicated its disagreement with the
court's decision and opinion in the Rice Milling case. We have care-
fully reexamined the court's opinion and are constrained once again to
express our disagreement with it. We further note that in its con-
sideration of the problem, that court failed to take into account a
second hurdle in the definition of "employees." Unless the persons
"induced" are "employees," the inducement does not fall within the pro-
scription of Section 8 (b) (4). That court's approach thus would re-
quire that we ignore not only the definition of "employer" but also of
"employee" in interpreting the Act.
The Board's function is to carry out the mandate of Congress em-
bodied in the National Labor Relations Act, as amended. The Board
cannot modify the statute to conform to its own notion of desirable
policy.5 The intent of Congress is to be derived primarily from the
language used.in the statute. And where the statutory language is
clear and unambiguous on its face, there is no room for construction,
but the statute must be applied as written.6 Congress has said ex-
plicitly that "when used in this Act" the terms, "employer" and "em-
Sprys Electric Company, 104 NLRB 1128. _
Colgate-Palmolive-Peet Co. v. N. L R. B., 338 U. S . 355, 363.,
e Osaka Shosen Kaisha Line v. United States, 300 , U. S. 98, 101 ; Heivering v. City Bank
Farmers Trust Co., 296 U. S. 85, 89; Russell Motor Car Co . v. United States, 261 U. S.
514, 529.
LOCAL 833 273
ployee" shall have the meanings set out in Section 2 ( 2) and 2 (3),
respectively. Congress has not said that the definitions contained in
Section 2 were not to be applied to Section 8 (b) (4) (A). If that had
been its intent, it could easily have indicated as much by adding "ex-
cept in Section 8 (b) (4) (A)" to the phrase "When used in this Act."
That Congress did not utilize this simple device is persuasive evidence
that it intended the definitions set forth in section 2 to be applied
throughout the Act without qualification or exception?
Moreover, the legislative history makes it clear that the exemption
of employees of railroads and governmental instrumentalities from the
scope of the Act was made primarily for the purposes of Section 8
(b). The Senate version of the Taft-Hartley amendments originally
provided only for the exemption of employees of employers subject
to the Railway Labor Act. The Senate Report gave the following
explanation for the exemption : 8
(C) The exemption of employees of employers subject to the Rail-
way Labor Act is to make it perfectly clear that in providing
remedies for unfair labor practices of unions and their agents
it was not intended to include such employees. [Emphasis
supplied.]
The House bill 8 exempted "any individual employed by any person
other than an employer as herein defined."
The House Conference report 1° sums the final version up as follows :
(E) The House bill contained a clarifying provision to the ef-
fect that no individual was to be considered an employee for the
purposes of the Act unless he was employed by an employer as
defined in the Act.
(C) The Senate amendment excluded individuals employed by
any person subject to the Railway Labor Act (one of the cate-
gories of persons not treated as employers for the purposes of the
Act).
The conference agreement in general follows the provisions of
the Senate amendment.
It is thus manifest that Congress gave careful consideration to the
scope and purpose of the exclusionary language in Section 2 (3) and
that it clearly intended to make this language applicable to Section
8 (b) of the Act.
7 Cf. N. L. R. B v. Dent d Russell , Ltd., 344 U. S. 375, 379.
"In the absence of expressed instructions , it may be assumed that a term is red
throughout the statute in the same sense in which it was first defined ." Pampunga
Sugar Mills v. Trinidad, 279 U S 211, 218
8 Sen . Rep No . 105, 80th Cong., 1st Sess. , 19 (1947).
9 H R 3020, 80th Cong ., 1st Sess. , 5 (1947).
10 H. R Rep No 510, 80th Cong., 1st Sess. , 31 (1947).
405448-57-vol 11E 19
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We cannot agree that the use of the "any" preceding the word "em-
ployer" in Section 8 (b) (4) has the significance attributed to it by
the General Counsel in this,,case and the court of appeals in the Rice
Milling case. "Any" is an adjective which means one indifferently out
of a number." It is customarily considered to be synonymous with
the indefinite articles "a" and "an. " 12 "The word `any' may mean
`some ,' `one out of many' or may be construed to mean `all.' Ordinarily
it is used synonymously with `a' or `an' referring to `one."' 13 Indeed
the conference report describing the operation of the new Section 8
(b) (4) of the Taft-Hartley bill uses "an" and "any" interchangeably,
thus following the dictionary meaning of "any." 14 We think that,
when considered in context, the phrase "any employer" in Section 8
(b)- (4) must be understood as meaning nothing more than "any em-
ployer as defined in Section 2 (2) of the Act."
Any other interpretation of "any employer" would result in an ex-
tension of protection against secondary boycott into areas wider than
those areas where protection is afforded against all the other conduct
proscribed by 8 (b), as for instance , the jurisdictional strikes pro-
scribed by 8 (b) (4) (D). However concerned Congress was with
secondary boycott, there is no legislative history nor any language in
the Act other than "any employer" to show an intention to give broader
protection against secondary boycott than against other direct in-
fringements of employer's rights. And no such significance can be
attributed to the word "any" consistent with the Board's interpreta-
tion of its use in connection with work jurisdiction strikes. "Any
employer" appears in 8 (b) (4) (D), but, the Board clearly would not
attempt to render a determination of a jurisdictional dispute unless
it involved an employer as defined in the Act. Furthermore, to find
in the word "any" appearing in 8 (b) (4) (A), a basic view that Con-
gress intended to "deal a death blow to secondary boycotts" wherever
found, not only violates this limited interpretation of 8 (b) (4) (D),
but would also inevitably lead us into regulation of labor relations
of employers which Congress clearly meant to exclude from our juris-
diction. Thus, if a railroad employees' union, in aid of its primary
dispute with Railroad A, induces employees of Railroad B or of any
other business enterprise to cease work, we would be required under
the General Counsel's view to enjoin such secondary boycott activity
by the railroad employees' union. However, Section 8 (b) (4) pro-
scribes only secondary boycotts conducted by a "labor organization"
(or its agents). Under Section 2 (5) a railroad employees' union is
11 Webster 's, New International Dictionary ( 2nd ed 1947)
"According to Funk '& Wagnalls, New Standard Dictionary (1 952), "any' means "one,
or a portion of, indefinitely and indifferently , a , an ; some "
13 People v. One 1949 Buick Sedan, 162 P . 2d 318 , 320 71 Cal App 2d 160.
14 FI R Rep No 510, 80th Cong, 1st Sess., 43-45 (1947).
LOCAL 833 275
clearly not a labor organization for the purposes of the Act as no
"employees" participate in it. To sustain the complaint, we would
have to find that, nevertheless, for the limited purposes of Section 8
(b) (4) such union qualifies as a "labor organization." We are un-
able to make such exception, especially because we believe that matters
affecting railroads and railroad employees' unions properly pertain
to the orbit of the instrumentalities established by Congress in the
Railway Labor Act. It follows that secondary boycott by a rail-
road union or union of municipal employees does not violate Section
8 (b) (4) (A) even if such boycott involves inducement of employees
of neutral employers subject to the Act. Thus, it is clear that Congress
left unregulated a large area of potential secondary boycott activity
and did not in fact use all the power at its command to eliminate
such activity from the industrial scene. Accordingly we would do
violence to both the language used by Congress in the statute and the
congressional intent as revealed in the legislative history if we held
that the provisions against secondary boycott were to be enforced
beyond the boundaries of our ordinary exercise of jurisdiction.
Further, we do not consider that the recent Supreme Court decision
in the "piggy-back" case 15 affects the above conclusion. In the
"piggy-back" case, the Supreme Court decided that a railroad as a
"person" may file secondary boycott charges against a labor organiza-
tion. It did not decide that a railroad and, a fortiori, a municipality,
is also an "employer." In fact, it carefully avoided making such de-
termination; and it certainly did not decide that the terms "employer"
and "person" as used in Section 8 (b) (4) (A) are synonymous, one
of the arguments advanced by the court of appeals in the Rice Milling
decision to support its interpretation of the phrase "any employer."
A violation of Section 8 (b) (4) (A) is made out according to the
wording of the statute, when two things concur : (1) A labor organ-
ization or its agent has induced or encouraged "employees of any
employer" to engage in a strike, etc.; (2) with an object of forcing
or requiring "any employer or other person" to cease handling the
products of any other producer, etc., or to cease doing business with
"any other person." It is significant that the word "person" occurs
only in part (2) which deals with proscribed objectives, and not in
part (1) which sets forth the kind of, conduct which may not be used
to achieve the proscribed listed objectives. We have no right to as-
sume that the omission of the term "person" from part (1) was not
deliberate and reflects only careless draftsmanship. On the contrary
all the evidence is that Section 8 (b) (4) was carefully considered and
drawn. If Congress had intended "employer" and "person" to be
interchangeable wherever used in Section 8 (b) (4) '(A), it could
1 Teamsters Local v. New York , N. H. & H. R R ., 350 'U. S 155.
276 DECISION S OF NATIONAL LABOR RELATIONS BOARD
have indicated as much by adding "or other person" to "any employer"
in part (1) just as that phrase was added in part (2). The failure
to do so, it seems to us, reflects Congress' intention that only induce-
ment or encouragement of employees of an employer, defined as such
in Section 2 of the Act, to engage in a strike, etc., for an object pro-
scribed in 8 (b) (4) (A) is unlawful. Therefore, as the city of
Milwaukee is not an "employer" and its workers are not "employees,"
as those terms are defined in the Act, we find that the Respondent did
not "induce or encourage the employees of any employer" to engage
in a work stoppage for an objective proscribed in Section 8 (b) (4)
(A). We feel constrained to make this finding because we consider
it the Board's duty to apply the Act as written. If there is disagree-
ment with the result we must reach in discharging that duty, the
proper forum for a change of the Act is Congress.
The dissent asserts that the present decision is inconsistent with an
earlier decision in this case involving Local 833, UAW-AFL-CIO,
and its parent international. Both these labor organizations were
originally respondents in the present proceeding. They entered into
a settlement stipulation with the General Counsel and the Charging
Parties providing for the entry of a consent order by the Board and
a consent decree by an appropriate court of appeals. The Board ap-
proved the stipulation and entered an order in the words of the stip-
ulation enjoining those two labor organizations from picketing
"Buteyn Construction Co., City of Milwaukee, Chicago and North-
western Railway Company, or any other employer or person" for a
proscribed secondary objective. However, the Board's Order specifi-
cally stated that the settlement stipulation did not dispose of the is-
sues involved in the charges against the present respondents.
The Board's approval of the settlement stipulation in the earlier
aspect of this case was made pro forma. There, none of the parties
raised, and the Board did not consider, the issue presented in the
present case. Here, that issue was asserted as an affirmative defense
by the present Respondents. The question was reserved under the
terms of the Board's Order in the settled case. We do not consider
that the routine approval of a stipulation and the embodiment of its
language in a Board Order constitutes a determination of an issue
such as which we have decided in this case only after written and
oral argument and exhaustive and painstaking analysis of legislative
history and the wording of the statute.
Our dissenting colleague also ascribes to us a disregard of the pub-
lic welfare in our construction of the term "any employer." It is
true, as the dissent asserts, that Section 8 (b) (4) (A) is intended to
protect public rather than private rights.16 This is an unexceptionable
16 The quotation from Senate Report No . 105 upon which the dissent relies was used
to justify the new Injunctive procedure. It was an obvious answer to anticipated criticism
LOCAL 833 277
statement which applies as well to the whole body of the National
Labor Relations Act-both its Wagner and Taft-Hartley Act sec-
tions.17 To say this, moreover, is not to confer on the Board the
authority to change the ordinary meaning of the words used in the
statute so as to outlaw conduct which the Board members may regard
as undesirable from the point of view of the public interest. This is
the legislative and not the judicial or quasi-judicial approach to a
problem. Significant of the weakness of the dissent's position is that
it makes no reference to the Act's injuction that when such words as
"employer," "employee," and "person" are used in the Act they shall
have the meanings defined in Section 2.
We believe that the dissent erroneously asserts that the majority's
theory of the Act would defeat the efforts of Congress to protect farm-
ers from secondary boycotts. Congress was concerned with the type
of secondary boycott which occurs when a farmer drives his truck
loaded with produce to the delivery point and the workers of the sec-
ondary employer at the behest of a union refuse to unload the truck
in order to exert pressure on the farmer to comply with certain union
demands.18 This type of secondary boycott in which the farmer is the
object of pressure exerted upon a neutral employer is very definitely
within the scope of our interpretation of the Act for the farmer, if
that the new bill involved reviving Government by injunction. The full quotation is as
follows :
After a careful consideration of the evidence and proposals before us, the committee
has concluded that five specific practices by labor organizations and their agents,
affecting commerce, should be defined as unfair labor practices. Because of the nature
of certain of these practices, especially jurisdictional disputes, and secondary boy-
cotts and strikes for specifically defined objectives, the committee is convinced that
additional procedures must be made available under the National Labor Relations
Act in order adequately to protect the public welfare which is inextricably involved
in labor disputes.
Time is usually of the essence in these matters, and consequently the relatively
slow procedure of Board hearing and order, followed many months later by an en-
forcing decree of the circuit court of appeals, falls short of achieving the desired
objectives-the prompt elimination of the obstructions to the free flow of commerce
and encouragement of the practice and procedure of free and private collective bargain-
ing. Hence we have provided that the Board, acting in the public interest and not
in vindication of purely private rights, may seek injunctive relief in the case of all
types of unfair labor practices and that it shall also seek such relief in the case of
strikes and boycotts defined as unfair labor practices.
17Amalgamated Utility Workers V. Consolidated Edison Company of New York, Inc.,
309 U. S. 261, 265.
Is Di Giorgio Fruit Corp. v. N. L. R. B., 191 F. 2d 642, 644-645, 647 (C. A, D. C.)
cert. denied 342 U. S. 869.
According to Senator Ball : ".. . under the Hobbs Act it is necessary to prove force or
violence or threats, and unfortunately that is not the way shipments are stopped. It is
by means of a secondary boycott, through economic pressure. The farmer simply is told,
'O. K. If you do not go along with this, your stuff will not be unloaded when it finally
gets to market.' " 93 Cong. Rec. 5069.
Similarly, during the course of the same debate, Senator Taft said : ". . . we are
dealing with the checking of deliveries through secondary boycotts or jurisdictional
strikes. . . . The trouble is that the man drives up to the delivery point, and because
the Teamsters' union says he does not have a Teamsters' card, then the union in the plant,
the unloaders, or longshoremen, or whatever they may be, will not unload his truck.
That is what we are trying to reach in this case. We are dealing with the one narrow
phase of secondary boycotts and jurisdictional strikes." Idem.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not an "employer" is a "person" against whom secondary boycott
action is unlawful.19
Congress was undoubtedly concerned with the plight in which
secondary boycotts place farmers; and it effectively protected
farmers from the sort of boycotts which it then had in mind,
boycotts by teamsters, unloaders, etc. At the same time, it seems
indisputably clear that Congress did not intend to include within
either the benefits or the restrictions of the Act organizations
composed exclusively of agricultural laborers. There is nothing
to tell us whether, if Congress had noted the problem of second-
ary boycotts against farmers by organizations of agricultural
laborers, it would have decided it according to its policy in re-
spect to agricultural laborers or would have decided it in accord-
ance with its policy in respect to the protection of farmers. Con-
gress did not in terms make such a boycott an unfair labor
practice within the meaning of the statute and thus subject to the
statutory limitations and processes 2°
What the court said in the Di Giorgio case about secondary boycotts
against farmers by organizations of agricultural laborers applies
equally to strikes against farmers by labor organizations in order to
exert pressure on a primary employer or person. That was not a
practical problem before the Congress, nor do we know that it is one
now.
The dissent finds support for its broad interpretation of the word
"any" in Section 303 (b) of the Act which provides :
Whoever shall be injured in his business or property by reason of
any violation of subsection (a) may sue therefore in any district
court of the United States subject to the limitations and provisions
of section 301 hereof without respect to the amount in controversy,
or in any other court having jurisdiction of the parties, and shall
recover the damages by him sustained and the cost of the suit.
Section 303 (b) obviously deals only with procedure. We can see no
connection between the words "whoever shall be injured in his business
or property" and the phrase "any employer" used in Section 8 (b) (4)
(A) and Section 303 (a) (1). All that 303 (b) means is that if there
is a violation of 303 (a) then anyone injured thereby may sue in the
Federal courts. The word "whoever" neither adds to nor detracts from
that liability. Similarly strained, it seems to us, is the reliance upon
the phrase "any injured party" drawn from a senatorial statement in
justification of civil suits for secondary boycott violations.
19 Waialua Dairy, 111 NLRB 1220.
20 Ds Giorgio Fruit Corp . v. N. L. R. B., 191 F. 2d 642 , 647 (C. A., D. C.) cert. denied
342 U. S 869.
LOCAL 833 279
Finally, we do not agree, as the dissent asserts, that our holding con-
flicts with the Supreme Court decision in the "piggy-back" case. The
Supreme Court's decision was a narrow one as pointed out above.
It did not decide that there was a violation of the Act; it left that
question for future determination by the Board. It did, however,
refer to the fact that the Massachusetts court had found that there was
no claim that the union had interfered in any way whatsoever with the
railroad's employees. Although stating that since railroads are not
excluded from the Act's definition of "person," they are entitled to
the protection against the kind of unfair labor practices proscribed by
Section 8 (b) (4) (A), the court did not undertake to decide precisely
what those violations might be. Certainly it did not adopt the inter-
pretation of the phrase "any employer" urged by the dissent.
Accordingly, we find no violation of the Act in the Respondents' con-
duct and shall dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
MEMBER MURDOCK, concurring :
I agree entirely with the decision of my colleagues in the majority
that the city of Milwaukee is not an "employer" within the meaning
of Section 8 (b) (4) (A). The reasons stated for that decision, in-
cluding the most careful analysis of statutory definitions and legislative
history, seem to me to permit no other conclusion. In view, however,
of the broad interpretation of the Supreme Court's recent decision in
Teamsters Local v. New York, New Haven cC Hartford Railroad,
supra, advanced by our dissenting colleague, I wish to express my own
views more completely on this subject.
As both the majority and dissenting opinions point out, the issue
before the Supreme Court in the Teamsters case was whether a rail-
road as a "person" could properly file a charge to invoke the processes
of the Board in a secondary boycott case. In my opinion, the Court
decided this issue alone. The Court held that the Board was not
divested of its jurisdiction over this controversy "solely because a rail-
road is the complaining party." Whether or not the facts of the
Teamsters case constitute a violation of Section 8 (b) of the Act is,
as the Court held, "a question for the Board to determine." I do not
believe that the Court could have intended to deprive the Board of its
responsibility to make this initial determination in so important a
matter. The Board was not a party to the proceeding before the Court
and the Board's views, set forth fully in the Al J. Schneider Company,
Inc. case, 89 NLRB 221, were apparently neither litigated nor con-
sidered by the Court. In that case the Board held that a governmental
agency was neither an "employer" nor a "person" within the mean-
ing of Section 8 (b) (4) (A). Contrary to our dissenting colleague, I
cannot agree that the Supreme Court's Teamsters decision reverses
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
either of these conclusions . Convinced of the rightness of the
Schneider case and in the absence of a specific reversal by the Supreme
Court, I adhere fully to the views expressed in that case.
MEMBER RODGERS, dissenting :
.I• do not agree-•with the majority's refusal to find that the Re-
spondents,violated Section 8 (b) (4) (A),of the Act by inducing and
encouraging the dockworkers employed by the city of Milwaukee
not to handle cargo destined for Kohler. The majority's action is
predicated upon the theory that only inducement or encouragement
of employees of an employer defined as such in Section 2 (2) of the
Act, to engage in a strike, etc., for an object proscribed by Section
8 (b) (4) (A) is unlawful, and, therefore, that since the city of Mil-
waukee, although concededly an employer in the generally accepted
sense, is not an employer under Section 2 (2),21 the Respondents are
free to engage in secondary activity against it. This is inconsistent
with the Board's earlier Decision and Order in this case disposing
of the issues involved in the charges against Local 833, UAW-AFL-
CIO, and its parent international. Under that Decision and Order,
which upon the petition of the Board has been enforced by the United
States Circuit Court of Appeals for the Seventh Circuit, Local 833
and its parent international are prohibited from engaging in sec-
ondary boycotts against the city of Milwaukee upon the premise that
the city of Milwaukee is an employer entitled to the protection of
the Act. I believe that the Board was right in its earlier decision,
and would adhere to it for the following reasons: 22
1. The majority's position negates the intent of Congress in enact-
ing Section 8 (b) (4) (A). As interpreted by the majority, Section
S (b) (4) (A) prohibits secondary activity only when it is directed
against employers subject to the Act. The majority thus views the
section as having been designed merely for the protection of those
employers. It is clear, however, that, rather than the private inter-
ests of particular employers, Congress had uppermost in its mind the
public welfare, and that in order to protect the public from the grave
injuries consequent upon secondary boycotts, Congress sought to elimi-
nate them once and for all from interstate commerce. Thus, the Senate
Labor Committee reported :
Because of the nature of certain of these practices, especially
jurisdictional disputes and secondary boycotts and strikes for
21 The city of Milwaukee, as "a political subdivision" of the State of Wisconsin is
specifically excluded from Section 2 (2).
2'While the earlier decision and order was based upon a settlement stipulation entered
into by the parties and approved by the Board, the stipulation necessarily related only to
evidentiary facts and procedural matters and not to the power of the Board to protect
the city of Milwaukee against secondary boycotts . It is well settled that the power of
the Board to issue cease and desist orders derives not from the stipulation but from the
statute.
LOCAL 833. 281
specifically defined objectives, the committee is convinced that
additional procedures must be made available under the National
Labor Relations Act in order adequately to protect the public
welfare which is inextricably involved in labor disputes. . . .
Hence, we have provided that the Board, acting in the public
interest and not in vindication of purely private rights, may seek
injunctive relief in the case of all types of unfair labor practices
and that it shall also seek such relief in the case of strikes and
boycotts defined as unfair labor practices.23 [Emphasis supplied.]
And its chairman, the late Senator Taft, stated in the course of legis-
lative debate:
It has been set forth that there are good secondary boycotts and
bad secondary boycotts. Our committee heard evidence for weeks
and never succeeded in having anyone tell us any difference be-
tween different kinds of secondary boycotts. So we have broadened
the provisions dealing with secondary boycotts as to make them
an unfair labor practice 24
The public welfare is surely no less involved in secondary boycotts
at the port of Milwaukee because the port facilities are under munici-
pal ownership, than it would be if the port facilities were privately
operated. Nor is the flow of commerce through the Milwaukee Harbor
any less injured or obstructed. The inescapable effect of the major-
ity's position is to expose interstate commerce, whenever public own-
ership is involved, to the obstacles occasioned by secondary boycotts.
Under the majority's reasoning, all publicly operated instrumentalities
of commerce thus become free and open targets for secondary boycotts.
Moreover, although not directly involved in this case, the majority's
theory of the Act, it should be noted, would defeat the efforts of Con-
gress to protect farmers from secondary boycotts. Legislative history
amply demonstrates that a prime objective of Congress in prohibiting
secondary boycotts was to protect "the farmer or farmer-trucker who
are the main victims of this type of union activity." 25 As a specific
example of what Congress had in mind, Senator Ball gave the situation
where "the farmers hauling their produce [to city markets] are com-
pelled to obey 100 percent every rule laid down by the Teamsters'
union, or they cannot do business." 26 But in such a situation a f arm-
er's employees are not employees within the meaning of the Act 21
and, therefore, under the majority's reasoning, the farmer would
23 Senate Report No . 105 on S. 1126 , p. 8 (1 Leg. Hist. 414).
2193 Cong. Rec. 4323.
zo Senate Report No. 105 on S. 1126, Supplemental Views, p . 54 (1 Leg. Hist 460).
2193 Cong. Rec . 5038 ( 2 Leg. Hiet. 1351 ). See also 93 Cong. Rec. 3424, 3432
21 Section 3 (f) of the Fair Labor Standards Act, to which the Board is requested to
refer in determining whether employees are agricultural laborers exempt from this Act,
defines "agricultural" to include "delivery to storage or market or to carriers for trans-
portation to market."
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not be an employer for purposes of Section 8 (b) (4) (A). It would
follow then, according to the majority, that the Teamsters' union
would be free in a secondary boycott context to induce the farmer's
employees not to deliver his produce to market. To obtain the pro-
tection of the Act, the farmer would have to contract his hauling to a
trucker subject to the Act. A theory productive of such results can-
not, in my opinion, reflect a proper interpretation of the Act.
"Courts usually will avoid interpreting a statute so as to render it
ineffective, or to cause grave public injury, if there is a more reasonable
interpretation that can rightfully be adopted." 28 The Board should
do likewise.
2. The majority's position misconstrues the words "any employer"
as used in Section 8 (b) (4) (A). Contrary to the majority, I agree
with the Fifth Circuit Court of Appeals that "Congress intended the
word `any' to embrace the class of employers as a whole, and not merely
those within the definition of employer as set forth in Section 2 (2)
of the Act." As the Fifth Circuit stated in the International Rice
Millinq case, in rejecting the Board's holding in that case that rail-
roads are not within the purview of Section 8 (b) (4) (A) :
A close reading of the language used in Section 8 (b) (4) (A)
convinces us that, by the use of the words "any employer," Con-
gress intended to extend the section to any and all situations rela-
tive to the one we have before us. In this particular section, the
usage of the word "any," as applied to the term employer, is con-
filied solely to subsection (4). Contrasting the usage of the word
"any," as found in subsection (4), with the use of the indefinite
article "an," as used elsewhere in the section gives rise to the
inference, we think, that Congress intended the word "any" to
embrace the class of employers as whole, and not merely those
within the definition of "employer," as set forth in Section 2 (2)
of the Act. In construing a statute, it is necessary that every word
be given significance and effect, and every part of the statute har-
monize. Thus, if Congress had intended the word "employer"
to mean only such employers as defined in section 2 (2), it would
have preceded the word by the indefinite article "an." Since
this was not done, we think it reasonable to conclude that the word
"employer," as used in Section 8 (b) (4), was intended to have
a wider and more inclusive meaning than the definition found in
Section 2 (2).29
-% International Rice Milling Co v. N. L R. B, 183 F 2d 21, 26 (C A. 5).
'91ate,natsoaal Race Mailing Co v N. L. R. B., 183 F. 2d 21, 25 (C. A. 5).
The majoiity claims that the void "any" is customarily considered to be synonymous
with the indefinite articles "a" or "an" referring to one. This may be true where the
word "any" is used in interrogative or conditional expressions But see Webster's New
LOCAL 833 283
That Congress intended the word "any" to embrace the class of
employers as a whole is also demonstrated by a consideration of Sec-
tion 303 of the Act. That section, which authorizes civil suits for
damages for boycotts and other unlawful combinations, used the same
terminology in defining a secondary boycott as does Section 8 (b)
(4) (A). The definition of a secondary boycott under Section 303
was, according to Senator Taft, intended to be "exactly the same as
the definition we had of an unfair labor practice" (namely, Section
8 (b) (4) (A) ).30 It is significant, therefore, that in subparagraph
(b) Section 303 gives the right to bring suit to "whoever shall be in-
jured in his business or property" by a secondary boycott. Further-
more, the Senate Labor Committee, in explaining the purpose of
Section 303, stated that the section was to provide for "direct suits
in the courts by any injured party." 31 [Emphasis supplied.] The
breadth of the terms "whoever" 32 and "any injured party" very
plainly indicates that Congress wished the phrase "any employer"
as used in Section 303, and pari passe in Section 8 (b) (4) (A), to
have the broadest connotation.33
3. The majority's position conflicts with the decision of the Supreme
Court in Teamsters Union v. New York, New Haven cC Hartford
Railroad Co., 250 U. S. 155 (the so-called "piggy-back" case). The
issue in that case was whether a Massachusetts State court could en-
join an alleged unlawful secondary boycott by'a labor organization
subject to the Act where the petitioner was an interstate railroad
subject to the Railway Labor Act. The alleged secondary boycott
involved a motor carrier. The Massachusetts Supreme Court deter-
mined that the State court had jurisdiction "because the Labor Man-
Int. Dictionary, Second Edition ( unabridged ), where the word "any" is defined in its
principal meaning as
indiscriminately of whatever kind . . whichever one chance may select . . . with
the implication that everyone is open to selection without exception . . . every . . .
indicating the maximum . . . all ; . . . the whole. . . .
Moreover, as defined by the courts, the word "any" is usually equivalent to and has the
force of "every" of "all ' See Words and Phrases, vol. 3A, pp 55-70, et seq.
30 93 Cong . Rec. 5060 ( 2 Leg Hist . 1371).
81 Senate Report No. 105 on S. 1126 , Supplemental Views, p. 54 ( 1 Leg Hlst . 460). For
additional legislative history showing that Congress intended Section 303 to have the
broadest coverage, see 93 Cong . Rec. 4843-46, 4858, 4872-73.
31 The term "whoever" as used in Section 303 has been construed as all-inclusive.
United Brack if Clay Workers v. Deena Artware Inc., 198 F. 2d 637, 644 (C. A. 6).
3a The majority claims that in failing to add the words "other person" in part 1 of
Section 8 (b) (4) (A) which describes the conduct forbidden , just as it was added to
part 2 which lists the objectives proscribed , Congress intended to limit "any employer" to
"employer" within the meaning of Section 2 (2). That contention begs the question. It
presupposes that Congress intended the term "any employer" as used in part 1 to have
a restrictive meaning. But , as I have demonstrated, the term "any employer" is all-
inclusive of the employer class and, therefore , there was no need to add "other person"
inasmuch as that term is necessarily included in the former. On the other hand, the
term "other person" had to be added to part 2 because an individual other than an
employer may be the victim of a secondary boycott and the term "any person " does not
necessarily include him.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agement Relations Act's definition of `employer,' as interpreted by
the N. L. R. B. cast doubt upon [the Railroad's] ability to obtain re-
lief under that Act" (350 U. S. at p. 159). Upon review, the United
States Supreme Court held that the State court could not enjoin the
union's conduct, that this Board had exclusive jurisdiction, and that
the railroad was protected by Section 8 (b) (4) (A) of the Act.
In reaching its decision, the Court has necessarily rejected the un-
derlying rationale of the majority's position in this case. The major-
ity refuses to protect the employer involved herein because it does
not come within Section 2 (2) of the Act. Otherwise stated, since
the employer is not subject to the regulatory scope of the Act, as are
employers under Section 2 (2), it is not entitled to the Act's protection.
The majority thus equates the protective reach of the Act with its
regulatory scope. This is known as the "correlative rights and duties"
concept of the Act which the Board first adopted in the Schneiders'
case and reaffirmed in the Sprys 35 case, relied upon by the majority
here. It was also in reliance upon the Schneider and Sprys cases
that the Massachusetts Supreme Court found that railroads could not
obtain relief under the Act.36
The Supreme Court, in reversing the Massachusetts court, has clearly
rejected the "correlative rights and duties" concept of the Act.
The Court ruled instead that the protective reach of the Act is broader
than its regulatory scope, and, therefore, that the right of an em-
ployer to Board protection is in no way dependent upon that em-
ployer being itself 'subject to the Act. Thus the Court stated : "It
34 Al J. Schneider Co., Inc., 89 NLRB 221. In that case the Board held that a public
instrumentality was not entitled to the protection of Section 8 (b) (4) (A). The Board,
inter alia, stated, pp. 223-224 :
The findings and policies of the Act demonstrate beyond a shadow of a doubt that
Congress legislated a scheme of correlative rights and duties attaching to employees,
employers, and labor organizations, from which government as "employer" was
intentionally excluded.
t • F * i A
[T]he design of the Act militates against the inclusion [of governmental agency
within Section 8 (b) (4) (A)] and [to include it] would be productive of serious
contradictions.
n t n k t t f
Thus, on the one hand, a governmental agency as a "person" could initiate a com-
plaint proceeding against a labor organization by filing a charge under Section 10 (b)
of the Act, for a labor organization under Section 8 (b) is capable of engaging in
unfair labor practices. On the other hand, a labor organization could not obtain
the issuance of a complaint against a governmental agency because under Section
8 (a) only an "employer" is capable of committing an unfair labor practice and, as
we have noted, a governmental agency is not an "employer" within the meaning of
the Act. Nor could representation proceedings be sought under Section 9 of the Act
for the requisite "employer" and "employee" relationship, by statutory definition,
would be nonexistent. In view of the foregoing, it is clear that the scheme and
policy of the Act, founded upon a structure of correlative rights and duties of em-
ployees, employers, and labor organizations, do not countenance the latching to its
framework of a governmental agency in the guise of "person."
Sprys Electric Co., 104 NLRB 1178.
New York, New Haven h Hartford Railroad Co. v. Jenkins, 122 N E. 2d 759, 764.
'LOCAL.833 285
is clear that neither railroads nor their employees may carry their
grievances with one another to the Y. L. R. B. for resolution. But
it does not follow from this that a railroad is precluded from seeking
the aid of the Board in circumstances unrelated to its employer-em-
ployee relations" (350 U. S., at 159). The Court went on to state,
after noting that railroads are excluded from the Act's definition of
employer : "We do not think that by so doing Congress intended to
divest the N. L. R. B. of jurisdiction over controversies otherwise
within its competence solely because a railroad is the complaining
party. Furthermore, since railroads are not excluded from the Act's
definition of `person,' they are entitled to Board protection from the
kind of unfair labor practice proscribed by Section 8 (b) (4) (A)"
(350 U. S., at 160).
That "kind of unfair labor practice" is one which involves, in the
words of the statute, the inducement or encouragement of the em-
ployees of any employer. The majority claims, nonetheless, that the
Court intended to protect railroads only as "persons" and not as "em-
ployers." In other words, according to the majority, a railroad is
entitled under the Supreme Court's decision to protection where it
is indirectly injured as in the case of secondary boycott aimed at com-
pelling a customer to cease doing business with it, but not where
the railroad is directly injured as in the case of a secondary boycott
involving its own employees. The majority bases this contention on
no more than the failure of the Supreme Court to find expressly that
a railroad is also an "employer" within the meaning of Section 8 (b)
(4) (A). Inasmuch as the issue before the Court was whether a rail-
road may file a charge to invoke the Board's protection, and the
Board's Rules and Regulations, relied on by the Court in determining
who may file a charge, speaks only of "any person," it was sufficient for
the Court to have found the railroad to be "a person" and it would
have been wholly superfluous for the Court to have gone into the "em-
ployer" question. It is, therefore, not permissible to infer, as does
the majority, that the Court did not intend to protect railroads as
employers. The more reasonable inference, particularly in view of
the broad language of the Court that railroads "are entitled to Board
protection from the kind of unfair labor practice proscribed by Sec-
tion 8 (b) (4) (A)," is that the Supreme Court intended to protect ra 1-
roads in either capacity.
The majority's contention is also untenable because it would sub-
stantially nullify the general principle established by the Court that.
an injured party need riot be subject to the Act in order to invoke
'the Board's protection. It would put a railroad in the position of 'a
fire department that by law is free to aid its neighbor but must stand
idly by when its own building is burning. I do not believe that the
Supreme Court intended so paradoxical a result. The Supreme
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Court's decision, in my opinion, stands for what it says-railroads,
and a fortiori municipalities, are entitled to the Board's protection
against any and all secondary boycotts by labor organizations subject
to the Act 37
For the foregoing reasons, I would find that the city of Milwaukee
is an "employer" within the purview of Section 8 (b) (4) (A) and,
accordingly, would find the Respondents guilty of engaging in un-
fair labor practices proscribed by that section.
37 The majority claims that , if employers not within Section 2 ( 2) of the Act are per-
mitted to invoke the Board's protection against secondary boycotts involving their own
employees , it follows that the Board will have to regulate the employer -employee re lation-
ships of parties whom Congress exempted from the regulatory scope of the Act, e. g., rail-
road and railway unions. That is a non -sequitur caused by the majority 's failure to
distinguish between the object and the subject of a secondary boycott. As used in See-
tion 8 ( b) (4) (A) "employer" is the "object ," and "labor organization" is the subject.
And, it is now well -settled under the authority of the so - called "piggy-back" case , supra,
that an object of secondary activity may obtain the Board 's protection without thereby
submitting its employer-employee relationships to the Board 's regulation . So far as the
Board 's regulation of secondary activity is concerned , the determining factor , once the
Board has jurisdiction over the primary employer , is as the Supreme Court indicated in
the "piggy-back" case , whether the "subject" of the secondary activity in question is a
labor organization within the meaning of the Act. That factor is , in turn , wholly inde-
pendent of the status under the Act of the secondary employer involved as is shown by
the instant case where the respondents have been found to be labor organizations within
the meaning of the Act although the secondary employer involved does not come within
Section 2 ( 2) of the Act.
Likewise without substance, is the majority 's claim that unless the term "any employer"
as used in Section 8 ( b) (4) (A) is given a restrictive meaning , the Board would have to
determine under Section 8 (b) (4) (D) jurisdictional disputes involving employers not
subject to the Act. Before the Board may determine an unfair labor practice charge, it
must have a basis for asserting jurisdiction . In secondary boycott cases , the Board under
applicable law asserts jurisdiction on the basis of the primary employer and/or the
secondary employer . If the primary employer is subject to the Act , the Board asserts
jurisdiction , as it did in the instant case , even though the secondary employer is not.
However , in jurisdictional disputes unaccompanied by secondary activity only primary
employers are involved . Consequently , under such circumstances , the situation cannot
arise where the Board would be determining a jurisdictional dispute involving the employer-
employee relationships of parties not subject to the Act. Moreover , where a jurisdictional
dispute is backed up by secondary activity , the secondary employer would be involved, as
here, only to the extent that it would be protected from the unlawful extension of the
primary dispute . The employer-employee relationship of the secondary employer would in
no way be affected.
E. I. du Pont de Nemours and Company (Dana Plant) 1 and
Plumbers and Steam Fitters Local Union No. 157, United As-
sociation of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and Canada, AFL-
CIO, Petitioner . Case No. 35-RC-167. July 24, 1956
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before John W. Hines, hearing of-
ficer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
1 The name of the Employer appears as amended at the hearing.
116 NLRB No. 36.