National Labor Relations Board v. Brown & Root, Inc.

• Decision Date: 08 July 1953
• Docket Number: No. 14680.,14680.
• Parties: NATIONAL LABOR RELATIONS BOARD v. BROWN & ROOT, Inc. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

203 F.2d 139 (1953)

NATIONAL LABOR RELATIONS BOARD v. BROWN & ROOT, Inc. et al.

No. 14680.

United States Court of Appeals, Eighth Circuit.

March 24, 1953.

Rehearing Denied July 8, 1953.

Harvey B. Diamond, Atty., National Labor Relations Board, Washington, D. C. (George J. Bott, Gen., Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Owsley Vose, Atty., National Labor Relations Board, Washington, D. C., on the brief) for petitioner.

Ben H. Powell, Jr., Austin, Tex. (William A. Brown and Powell, Wirtz & Rauhut, Austin, Tex., on the brief) for respondent Ozark Dam Constructors.

Ben H. Powell, Jr., Austin, Tex. (W. Morgan Hunter, William A. Brown and Powell, Wirtz & Rauhut, Austin, Tex., on the brief), for respondent Flippin Materials Co.

Woll, Glenn & Thatcher, Herbert S. Thatcher, J. Albert Woll, James A. Glenn and Joseph E. Finley, Washington, D. C. amicus curiae for American Federation of Labor, Building & Construction Trades Department, A.F.L., and Fort Smith, Little Rock and Springfield Joint Council, A.F.L.

Before SANBORN, JOHNSEN and RIDDICK, Circuit Judges.

SANBORN, Circuit Judge.

The National Labor Relations Board seeks, and the respondents¹ resist, the enforcement of an order of the Board issued June 27, 1952. 99 N.L.R.B. No. 153. The respondents are construction contractors and the organizers of two joint ventures, one to build and the other to furnish material for building a dam under separate government contracts.

The order is based upon a determination by the Board that the respondents are a single employer and have violated Section 8(a)(1) and (3) of the National Labor Relations Act, 49 Stat. 449, as amended by the Labor Management Relations Act, 1947, 61 Stat. 136, 29 U.S.C.A. § 151 et seq., by discriminating with respect to the reinstatement of employees who were on strike from December 3, 1948, until December 14, 1949. The order, in effect, requires the respondents to refrain from discriminating against employees because of their participation in the strike or other protected activity, from discouraging, by acts of discrimination, membership in Fort Smith, Little Rock and Springfield Joint Council, A.F.L. (hereafter called Joint Council), or in any other labor organization, and from in any manner interfering with the exercise by employees of their statutory rights. The order also requires the respondents to offer reinstatement to striking employees who were found by the Board to have been unlawfully refused reinstatement, and to make whole all employees who the Board found had lost pay as a result of unfair labor practices of the respondents.

The following questions are presented for decision:

1. Was the Board barred by the provision of Section 10(b) of the Act "That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board", from finding that the strike resulted from an unfair labor practice?

2. Was the Board precluded from finding that the respondents were a single employer, because of the prior proceeding against the same respondents as separate employers, which proceeding culminated in the decision of this Court in National Labor Relations Board v. Ozark Dam Constructors and Flippin Materials Co., 8 Cir., 190 F.2d 222?

3. Were proper applications for reinstatement shown to have been made by the strikers found by the Board to have been discriminated against with respect to reemployment after the strike?

4. Was there sufficient evidence to support the determination of the Board, (a) that jobs or vacancies in excess of the number of strikers applying for reinstatement were available; (b) that the respondents had discriminated with respect to reinstatement against employees of Ozark Dam Constructors (hereafter referred to as Ozark) represented by the International Association of Machinists (hereafter called I.A.M.); (c) that respondents had discriminated against striking employees to discourage membership in any labor organization; and (d) that respondents had not in good faith substantially complied with their obligations to reinstate strikers?

5. Was the formula prescribed by the Board for computing back pay invalid?

The factual background of this controversy is not seriously disputed and may be stated, in substance, as follows:

Ozark is a joint venture composed of the construction contractors named as respondents. In April, 1947, Ozark, under a contract with the United States, undertook the construction of the Bull Shoals Dam across the White River in Arkansas, a multimillion-dollar project requiring a large labor force. In November, 1947, Flippin Materials Co. (hereafter called Flippin), a separate joint venture composed of the same contractors, undertook, under another contract with the government, to supply Ozark with crushed stone aggregate for the project. The government-owned quarry operated by Flippin was seven miles from the dam site, and the crushed stone was delivered to Ozark at the dam site by a conveyor belt line.

On March 4, 1948, the Joint Council filed with the Board a petition for certification as bargaining representative of Ozark's employees. The I.A.M. intervened. The Board, after a hearing and the holding of elections, certified the joint Council as exclusive representative of two units of Ozark's employees, and the I.A.M. as representative of two other units. Flippin and its employees were not involved in the representation proceeding.

Thereafter the Joint Council filed a charge against Ozark alleging violations of Section 8(a)(1) and (5) of the Act. This was followed by an amended charge, and by a second amended charge in which for the first time Flippin was accused of having violated Section 8(a)(1) by interfering with the rights of its employees. Flippin was not charged with a refusal to bargain collectively. On these charges, the Board, in January, 1949, issued a complaint against Ozark and Flippin, charging Ozark with having refused to bargain in good faith with the Joint Council (a Section 8(a)(5) violation), and charging both Ozark and Flippin with having interfered with the rights of their employees (a Section 8(a)(1) violation). The Board on October 13, 1949, ordered both Ozark and Flippin to refrain from interfering with the protected rights of their employees, and ordered Ozark alone to bargain with the Joint Council as the representative of those employees of Ozark for whom the Council had been certified as the representative. 86 N.L.R.B. 520. The Board applied to this Court for enforcement of the Board's order of October 13, 1949. 190 F.2d 224. Ozark and Flippin each resisted enforcement of the order on the ground that the Board was without jurisdiction of their labor relations, which they asserted did not affect interstate commerce. Flippin also contended that there was no adequate evidentiary basis for a finding that it had interfered with the rights of its employees. This Court held that the Board had jurisdiction to make the order, and granted enforcement as against Ozark, but denied enforcement as against Flippin because of the insufficiency of the evidence to sustain the finding of the Board that Flippin had been guilty of a violation of Section 8(a)(1). 190 F.2d 222, 227-228.

While the proceeding to which we have referred was pending, the Joint Council on December 2, 1948, called a strike on account of the failure of Ozark to bargain with it in good faith. Some of the Ozark employees who were represented by I.A.M. and some Flippin employees joined the strikers. Both Ozark and Flippin were picketed. The strike was apparently not a success. Picketing of Ozark and Flippin ceased about August 1, 1949. The strike was terminated December 14, 1949, as the result of some preliminary negotiations and a meeting between representatives of the Joint Council and representatives of the respondents.

At the meeting of December 14, 1949, the Joint Council requested in writing that the strikers, "or those of them who present themselves, be immediately employed by the Ozark Dam Constructors." Ozark gave to the Joint Council a letter stating that it would "re-employ such persons to the extent required by the Labor Management Relations Act of 1947 and in the manner required thereby upon their application to Ozark Dam Constructors for such reemployment"; and that "this will require Ozark Dam Constructors to replace existing employees who have been hired for the first time since 4 December 1948 with such employees who have been out since 3 December 1948 and who re-apply for such jobs."

It was agreed at the meeting of December 14, 1949, that a committee of the Joint Council could examine Ozark's payroll to ascertain how many men had been employed by Ozark in the various classifications since the strike commenced, and that the Council should initiate a program of referring the strikers to Ozark for reinstatement.

The reinstatement program was at first a joint undertaking of the Joint Council and Ozark. The Council referred strikers to Ozark for reinstatement, and many were reinstated. By mutual agreement of December 19, 1949, the reinstatement program was discontinued over the holidays and until January 3, 1950. On January 3 the Joint Council was advised that Pat Earnest had been designated by Ozark to continue the reinstatement program. The Council furnished Earnest with a list of strikers purportedly still available for reinstatement and who desired reinstatement. A disagreement arose between the Council and Earnest as to how far Ozark had already met its obligations for the reinstatement of strikers, and as to whether employees of Flippin and employees of Ozark represented by I.A.M., who had participated in the strike, were entitled to reinstatement through the Joint Council.

A conference of representatives of the Council and representatives of the respondents was held on January 10, 1950, relative to the...