# National Labor Relations Board v. Local 810, Steel, Metals, Alloys & Hardware Fabricators & Warehousemen, International Brotherhood of Teamsters

> Court of Appeals for the Second Circuit · May 11, 1972 · 460 F.2d 1

URL: https://www.frixlaw.com/law-library/cases/8887956

## Case

- **Full name:** NATIONAL LABOR RELATIONS BOARD v. LOCAL 810, STEEL, METALS, ALLOYS & HARDWARE FABRICATORS & WAREHOUSEMEN, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, and Sid Harvey, Inc. and Sid Harvey Brooklyn Corp., Intervenors
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** May 11, 1972
- **Citations:** 460 F.2d 1
- **Precedential status:** Published
- **Opinion:** Concurrence by Mansfield
- **Judges:** Hays, Mansfield, Mulligan
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8887956

## Opinion text

MANSFIELD, Circuit Judge
(concurring) :
While I agree with the majority’s view, as expressed in Judge Hays’ able opinion, that as a matter of law the union did not violate the secondary boycott provisions of the National Labor Relations Act, § 8(b) (4) (i), (ii) (B), I feel that a more detailed explanation of my reasons is required.
Ever since the addition of the secondary boycott provisions to the NLRA, the separation of primary and thus protected concerted activity from secondary and hence unprotected concerted activity has led to great difficulty, in part because of the absence of legislative guidelines. As Justice Harlan, speaking for the Supreme Court, recently noted:
“No cosmic principles announce the existence of secondary conduct, condemn it as an evil, or delimit its boundaries. These tasks were first undertaken by judges, intermixing metaphysics with their notions of social and economic policy. And the common law of labor relations has created no concept more elusive than that *7 of ‘secondary’ conduct; it has drawn no lines more arbitrary, tenuous, and shifting than those separating ‘primary’ from ‘secondary’ activities.”
Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 386-387 ,. 89 S.Ct. 1109 , 22 L.Ed.2d 344 (1969). Nevertheless, boundary lines between “primary” and “secondary” activity have been drawn. It is clear, for example, that “allies” of a struck employer are not neutrals and are therefore not entitled to the protections of the secondary boycott provisions. An ally relationship may arise either from affirmative action — such as the performance of “struck work” by the secondary employer for the primary — or from the combination of circumstances. As the majority opinion notes, some of the circumstances which have been considered as persuasive in the past are the degree of common ownership of the employers involved, common control over their day-to-day operations and labor relations policies, and the extent of integration of business operations.
In my view the Board’s error lay not merely in the mechanical application of the “day-to-day” test but also in its failure to give sufficient weight to other circumstances which are controlling in this case. The absence of one of the foregoing relevant circumstances (e. g., lack of exercise of “day-to-day” control) does not automatically entitle the “other” employer to gain a secondary or neutral status'. Other circumstances may be sufficiently strong by themselves to call for denial of the claim of neutrality. Where there exists a high degree of common ownership and a large amount of economic interdependence between two or more companies, they should not be considered separate for the purpose of the secondary boycott provisions. In such instances the policies of the Act are best served by allowing the employees of one employer to extend their concerted activity to the situs of the other. “Any other rule would permit the employer to divide and conquer by doing business through several corporations, each comprising one bargaining unit.” Levin, “Wholly Unconcerned”: The Scope and Meaning of the Ally Doctrine Under Section 8(b) (4) of the NLRA, 119 U.Pa.L. Rev. 283, 320 (1970). On the other hand where there is common ownership only, such as exists in the typical conglomerate, without any substantial economic integration or interdependence, the pressure or absence of actual common control over operations or labor relations policies could be of great significance. See e. g., Los Angeles Newspaper Guild Local 69 v. NLRB, 443 F.2d 1173 (9th Cir. 1971), enforcing 185 N.L.R.B. No. 25 (1970); Miami Newspaper Pressmen’s Local 46 v. NLRB, 322 F.2d 405, 409 (D.C.Cir. 1963); Employing Lithographers of Greater Miami v. NLRB, 301 F.2d 20 , 29 (5th Cir. 1962); Television & Radio Artists v. NLRB, (D.C.Cir. April 17, 1972) .
Applying the foregoing principles, I am convinced that Sid Harvey, Inc., Sid Hafvey Brooklyn, Sid Harvey Suffolk, and Sid Harvey Nassau do not qualify for the statutory protection offered to “other employers.” As the majority opinion indicates, by reason of Stephen Harvey’s controlling stock interest, the degree of his domination and control of the several corporations, though only potential, was overwhelming. In addition, each company was fundamentally dependent on the others for its economic well-being. All of Inc.’s products are warehoused and distributed by Supply to the other Harvey companies. Although Supply purchases equipment from outside sources, it sells and distributes only to the Sid Harvey sales outlets. Furthermore, almost all of the products sold by Brooklyn, Nassau, and Suffolk are furnished by Supply. The picture, therefore, is of a manufacturing arm, a distribution arm, and several localized sales arms, each doing the bulk of its business with the others. In addition, there was evidence of an integrated advertising policy, a common telephone directory listing, periodic intercompany meetings, a common Sid Harvey newsletter, and other indicia of a coordinated *8 enterprise. Under such circumstances I do not believe that the union was required to prove a greater degree of actual control by Stephen Harvey over the operations of the complex. In short, while neither the common ownership nor the extensive economic interdependence, standing alone, might be sufficient to establish an ally relationship, their combination in this case convinces me that the various Harvey corporations are not neutral or “wholly unconcerned”.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8887956. Public record. Not legal advice.