National Labor Relations Board v. Swain and Morris Construction Co.

This dispute arose out of the discharge by respondents of two employees for refusing to cross a picket line of an employer other than their own. Respondent constructs power and telephone facilities in Montana, chiefly for the Montana Power Company. On June 30, 1966, respondent sent a crew to do several jobs for Montana Power, among which was the installation of yard or “security” lights for the Northern Timber Company. The latter was at that time engaged in an organizational dispute with the Butte Building Trades Council; a picket line had been set up which respondents’ crew refused to cross. After some discussion, respondent discharged the crew. The Trial Examiner found the discharge to have been motivated by bona fide business considerations. The Board, however, found the primary motivation to have been the crew’s protected union activities. The Court must determine whether there is sufficient evidence in the record to support the Board.

The Court will not reach respondent’s allegation that the refusal to cross the picket line was unprotected secondary boycott activity. The issue was not raised or proven before the Trial. Examiner or the Board, and no showing is made that…