Local 636, etc., Plumbing & Pipe Fit. Ind. of US v. NLRB

• Citation: 287 F.2d 354
• Decision Date: 19 January 1961
• Docket Number: No. 15665,15707.,15665
• Parties: LOCAL 636 OF the UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPE FITTING INDUSTRY OF the UNITED STATES AND CANADA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DETROIT ASSOCIATION OF PLUMBING CONTRACTORS et al., Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

287 F.2d 354 (1961)

LOCAL 636 OF the UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPE FITTING INDUSTRY OF the UNITED STATES AND CANADA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DETROIT ASSOCIATION OF PLUMBING CONTRACTORS et al., Respondents.

Nos. 15665, 15707.

United States Court of Appeals District of Columbia Circuit.

Argued December 1, 1960.

Decided January 19, 1961.

Petition for Rehearing Denied March 22, 1961.

COPYRIGHT MATERIAL OMITTED

Mr. Patrick C. O'Donoghue, Washington, D. C., with whom Messrs. Martin F. O'Donoghue and Thomas X. Dunn, Washington, D. C., were on the brief, for petitioner in No. 15,665.

Mr. Morton Namrow, Atty., National Labor Relations Board, with whom Messrs. Stuart Rothman, Gen. Counsel, National Labor Relations Board, Dominick L. Manoli, Associate Gen. Counsel, National Labor Relations Board, Marcel Mallet-Prevost, Asst. Gen. Counsel, National Labor Relations Board, and Allison W. Brown, Jr., Atty., National Labor Relations Board, were on the brief, for respondent in No. 15,665 and petitioner in No. 15,707.

Mr. Leslie W. Fleming, of the bar of the Supreme Court of Michigan, Detroit, Mich., pro hac vice, by special leave of court, for all respondents except United Engineers and Constructors, Inc., in No. 15,707. Mr. George P. Lamb, Washington, D. C., was on the brief for all respondents except United Engineers and Constructors, Inc., in No. 15,707.

Mr. William M. Saxton, of the bar of the Supreme Court of Michigan, Detroit, Mich., pro hac vice, by special leave of court, for respondent United Engineers and Constructors, Inc., in No. 15,707. Mr. George P. Lamb, Washington, D. C., was on the brief for respondent United Engineers and Constructors, Inc., in No. 15,707. Miss Carrington Shields, Washington, D. C., also entered an appearance for respondent United Engineers and Constructors, Inc., in No. 15,707.

Before PRETTYMAN, DANAHER and BASTIAN, Circuit Judges.

BASTIAN, Circuit Judge.

These proceedings stem from a cease and desist order issued by the National Labor Relations Board Board, based on the Board's finding that participation by certain employees of the companies named above in the internal affairs of Local 636 constituted employer violations of §§ 8(a) (1) and (2) of the Labor Management Relations Act of 1947 (Taft-Hartley Act), 29 U.S.C.A. § 158(a) (1, 2). Those two sections of the act define as unfair labor practices (1) employer interference with the exercise of rights guaranteed by § 7 of the Act, 29 U.S.C.A. § 157 (the right to organize and bargain collectively), and (2) employer interference with or domination of the administration of a labor organization.

In case No. 15,655, petition was filed by Local 636, naming the Board as respondent, for review to set aside, enjoin or modify the cease and desist order. In case No. 15,707 the Board filed a separate petition for enforcement of the cease and desist order, naming as respondents the companies named in the order. Because the issues raised by the two petitions are identical, the cases were consolidated for our consideration.

I

The companies named in the order, the local union, and the individuals involved are all connected with the building trades industry in and around Detroit, Michigan. The Board's order was predicated on its previous decision in Nassau and Suffolk Contractors' Association, 118 N.L.R.B. 174 (1957), in which the Board expressly recognized a unique feature of the building trades industry, the extreme upward and downward mobility of the positions of men working in the industry. Recognizing also the desire of various foremen and other supervisory employees in this industry to retain their union membership in a rank-and-file union as a type of job security so that they would be able to obtain work as journeymen if they were ever laid off in or surrendered their higher capacities, the Board sanctioned the practice in Nassau. In the present case, there was uncontradicted testimony before the Board that frequently a man was hired as a foreman on one job and as a journeyman on the next. In the order under consideration here, while requiring that certain union activity of supervisory employees cease, the Board required no one to completely relinquish his union membership.

II

We turn now to a consideration of the facts before the Board.

William Kelley: Kelley is employed by respondent United Engineers and Constructors as General Foreman of Pipefitters, with supervision over from 220 to 225 workmen, including a number of foremen. Under the supervision of his own superior, he hires men and also transfers them from one job to another. He assigns jobs to foremen and, on behalf of the employer, handles grievances relayed to him through shop stewards. His compensation is $80 per week more than that of a journeyman, and he has held his supervisory position for seven years.

Kelley is president of Local 636. His duties are to preside at meetings, make various decisions, sign checks, call special meetings, vote for officers, vote to break ties, impose fines and penalties, and to appoint committees. Payments are made, on his behalf, to various union funds by the respondent company. At all times pertinent to this petition, the company knew of but was not interested in Kelley's union activities, nor did it take any position in that respect.

Cyril M. Kruger: Kruger has been an employee of Johnson Service Company for thirty-three or thirty-four years and, for at least ten years, has held the position of superintendent of construction, with supervisory authority over 54 pipe fitters, including 6 supervisors. He has complete authority to direct or assign work, to hire, lay off and discharge, and to handle grievances of employees under his supervision. He receives about $30 a week above the wages of a journeyman pipe fitter. Although the company knew of Kruger's position in the union, it never instructed him to refrain from engaging in union affairs.

Edward McDonald: McDonald is employed by respondent Goss Mechanical Construction Company as general heating foreman. He is admittedly a supervisor, having 40-60 men under him including 6-10 foremen, to whom he has authority to assign job tasks. He earns $34 per week more than a journeyman and has been employed in his present capacity for one year, prior to which he had been employed for three years as job foreman by the same company.

McDonald is an active member of Local 636, attending meetings and voting. Payments have been made, on his behalf, to various union funds by the company. The company was not shown to have encouraged his membership in the union.

Alvin McShane: McShane is employed by respondent J. W. Partlan Company, with general supervision of its pipefitting crews, consisting of 10 to 100 men, including 4 to 5 crew foremen. He has authority to hire, discharge, transfer, lay off, recall, assign, direct and discipline, and to adjust grievances. He is paid $80 per week more than a journeyman and has been included whenever the company paid executive bonuses. He has held this job for 10 years.

McShane is a member of the election committee of Local 636, and is charged with the duty of checking with the operator of voting machines (when used), tallying votes, ruling on eligibility, and counting ballots. Payments were made, on his behalf, to various union funds by the company. The company was not shown to have encouraged his union membership or his participation in the union's election committee.

Harold Derocher: Derocher is employed by respondent Donald Miller Company as general supervisor of its pipefitting crews, with supervision of from 30 to 100 employees, including 3 job foremen and 6-20 area foremen. He has authority to hire, discharge, transfer, lay off, recall, assign, direct and discipline. He is the highest paid non-officer supervisor of the company and received executive bonuses of $3500 or more in 1957 and 1958. He has held this position for 14 years.

Derocher serves on the election committee of Local 636. The company made various payments on his behalf to union funds but was not shown to have encouraged Derocher to remain in the union or in his participation in the union's election committee.

Hugo Sieger: Sieger is employed by the Farrington Company as general field superintendent, with supervision of its pipefitting crews of 25-80 employees, including 8-15 crew foremen. He has authority to hire, discharge, transfer, lay off, recall, assign, direct and discipline, and is the highest paid supervisor of the company other than officers and owners. He has held this position for 14 years.

Sieger has been for eight years a member of the Executive Board of Local 636 and is charged with settling all questions and cases in dispute, disciplining members for various violations and serving on the negotiating team. The company made payments on his behalf to various union funds but was not shown to have encouraged his interest in his union activities.

Donald McNamara: McNamara is employed by Farrington Company as job foreman, with supervision over 10-20 employees. He has authority to assign men to various jobs and to recommend layoffs.

McNamara is also a member of the Executive Board of Local 636. The company made payments to various union funds on his behalf but was not shown to have encouraged his union activities.^*

III

On the basis of the above facts, the Board issued a cease and desist order in two parts. Part A of the order was directed against respondents Detroit Association of Plumbing Contractors and the Mechanical Contractors Association of Detroit and covered collective bargaining negotiations with a committee representing the union including, as members of the committee, supervisory employees of respondents. Part B of the order was directed against respondents Farrington Co., Goss Co., Partlan Co., Miller Co., Johnson Co., and United...