NLRB v. Local No. 2 of United Ass'n of J. & A. of P. & PI

• Decision Date: 12 May 1966
• Docket Number: No. 229-231,Dockets 29985-29987.,229-231
• Citation: 360 F.2d 428
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL NO. 2 OF the UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPEFITTING INDUSTRY OF the UNITED STATES AND CANADA, AFL-CIO, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

360 F.2d 428 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL NO. 2 OF the UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPEFITTING INDUSTRY OF the UNITED STATES AND CANADA, AFL-CIO, Respondent.

Nos. 229-231, Dockets 29985-29987.

United States Court of Appeals Second Circuit.

Argued January 24, 1966.

Decided May 12, 1966.

COPYRIGHT MATERIAL OMITTED

George B. Driesen, Washington, D. C., (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Warren M. Davison, Atty., N.L.R.B., Washington, D. C., of counsel), for petitioner, National Labor Relations Board.

Walter M. Colleran, Mineola, N. Y. (Doran, Colleran, O'Hara & Harding, Mineola, N. Y., of counsel), for respondent, Local Union No. 2.

Maria L. Marcus, New York City (Robert L. Carter, and Joan Franklin, New York City, of counsel), for Urban League of Greater New York, Inc., a charging party petitioner for intervention, and for National Ass'n for Advancement of Colored People, amicus curiae.

Martin F. O'Donoghue, Patrick C. O'Donoghue, Martin F. O'Donoghue, Jr., Washington, D. C. (O'Donoghue & O'Donoghue, Washington, D. C., of counsel), and Harold Stern, New York City, for United Ass'n of Journeymen and Apprentices of Plumbing and Pipefitting Industry of United States and Canada, AFL-CIO, amicus curiae.

Before FRIENDLY and HAYS, Circuit Judges, and DOOLING, District Judge.^*

DOOLING, District Judge:

The Labor Board seeks enforcement of its order based on findings that the respondent Local Union No. 2, United Association of Journeymen Plumbers, caused Astrove Plumbing & Heating Corp. ("Astrove") to discriminate against four non-union men in regard to hire and tenure of employment National Labor Relations Act, § 8(b) (2), 29 U.S. C.A. § 158(b) (2), and that the respondent restrained and coerced the same four men in the exercise of their rights under Section 7 of the Act NLRA § 8(b) (1) (A), 29 U.S.C.A. § 158(b) (1) (A).

The New York City Association of Contracting Plumbers, of which Astrove was a member, had a collective bargaining agreement with the respondent, Local Union No. 2. The bargaining agreement contained a priority-of-employment provision which read:

ARTICLE 2

UNION SECURITY

(a) The Association agrees that its members will give priority in employment opportunity to qualified and competent men based upon their length of employment in the geographical areas of the Union as contrasted and compared with men who have worked mainly in other geographical areas. The previous hiring practices in all respects shall continue including practice as to qualifications and competency, and furthermore, members of the Union may be hired as in the past without regard to prior length of service.

(b) In the event that during the term of this Agreement there is a change in the law which will permit a greater degree of Union security to the Union, such Union security provided in (a) above, shall be modified so as to provide the maximum degree of Union security permitted by such change in the law.

Astrove had a contract with the City of New York to install the plumbing and heating equipment in the Bronx Terminal Market; work had started in October 1963. Astrove employed as many as fifty journeymen and apprentice plumbers on the job. It had laid nine or eleven journeymen and apprentices off the job on April 9, 1964, because they were unaccustomed to the difficult work then in hand.

On April 23, 1964, the New York City Commission on Human Rights, charged with enforcement of an anti-discrimination provision of local law applying to work on City contracts (Administrative Code, § 343-8.0), referred Gerry Gonzalez, Bernard Allman, Isaac Borges and Jose Rodriguez, none of whom was a union member, to Astrove for employment. Astrove interviewed the men, got the names of their former employers, and wrote for information about the men's qualifications. Before Astrove had received answers to all its inquiries, the Commission on Human Rights advised Astrove that the four men were qualified journeymen plumbers and indicated to Astrove that its City contract might be cancelled unless its hiring practices were modified. Astrove thereupon on April 29 advised Local 2 that the four men would be hired. Local 2 at once dispatched a letter to the Joint Industry Board protesting the threatened hiring as violative of the priority-of-employment provision in the collective bargaining agreement, and it requested an arbitration hearing.

On April 30 Gonzalez, Rodriguez, Allman and Borges reported for work to Astrove's foreman at the Bronx Terminal Market job. Gonzalez and Rodriguez were told to change into work clothes, went to the change shanty to do so and, as they were changing, the business agent of Local 2 called the plumbers out on strike on the stated ground of an unsanitary work condition that had been under discussion for some weeks. Allman and Borges arrived a little later and were told by Astrove's foreman that there would be no work that day. The sanitation controversy was settled a few minutes after ten on the morning the strike was called, but the plumbers did not return to the job, no work was done that day, and the four men were not hired and were not paid.

While there was in fact a pending controversy over sanitary conditions, the members of Local 2 in the change shanty knew that Gonzalez, Rodriguez, Allman and Borges were not union men, one of the plumbers characterized the ascription of the walkout to the unsanitary condition as "baloney," and, later in the morning, the Local 2 business agent told Gonzalez that if he was hired by Astrove for the project "we are going to strike this project."

On the following morning, May 1, the four men again reported to the Astrove foreman and were told to go to the change shanty. Rodriguez, Allman and Borges went into the shanty, and there the Local 2 job steward asked them for their union welfare numbers and, when they could not furnish such numbers, told them, "We are not going to work with you here today, because nobody without a number can work in here." The three left the shanty and, with Gonzalez, went back to the Astrove foreman to fill out W-2 forms. Then all four started with the other plumbers toward the job site. One of the plumbers, in the presence of the Local 2 job steward, stopped them, and asked them if they had union membership books. They answered, "No." The job steward then called out to other men to come back, saying, "We don't work with non-union people." Others took up the cry, and all walked out. The Astrove foreman told Gonzalez and the other three that he could not do the work with only the four men; they were not hired or paid, and no work was done that day.

For two weeks, Astrove's work on the project was stopped. Astrove requested Local 2 to supply men for the job, and the President of Local 2 refused to do so until the pending arbitration had been heard and decided. Gonzalez and the other three men reported for work each morning, and they remained until Astrove's foreman advised them through the representative of the Human Rights Commission that there would be no work.

The strike became a cause celebre. Local 2 protested that it had taken specific affirmative action to open its ranks to members of minority groups and that it was not discriminating against Puerto Ricans or Negroes, but was simply insisting on Astrove's compliance with the priority-of-employment provision under which, Local 2 claimed, some 200 unemployed members of the local were entitled to preference over the four men of undetermined qualifications referred to Astrove by the Human Rights Commission. The President of the AFL-CIO, who was a member of Local 2, was quoted as saying he would resign from the Local if any member of it worked with a non-union man, and as saying, "This union does not work with non-union men." The president of the Local testified that he "wholeheartedly" agreed with the sentiment. It was based on the theory that each union man, acting as an individual, was morally bound to govern himself in accordance with Section 40(K) of the Local's Constitution and By-Laws, which provided

"No member may work for any employer who has in his employ any journeyman or apprentice who is not a member of the United Association."

Toward the end of the second week of the strike the Mayor intervened, and an arrangement was made under which work was to be resumed and the four men were to take a qualifying examination under union supervision but, in effect, under public view and with an opportunity afforded third parties to review the examination papers. Astrove resumed work on May 18 but the four men were not hired on, presumably because of the pending qualifying examination. Three of the four men took the test on May 18 and failed it. The president of Local 2 said, "I couldn't for the life of me see how those men could concentrate." The room was "jammed." "The cameras were all around the place." Although the test was fair in itself, it was one that presupposed a program of preparatory study, since it required command of a good deal of technical data that not every qualified plumber keeps at his fingertips. A later effort to arrange a test failed when Local 2 declined to admit an observer and to allow the examination papers to be checked.

On May 8 and 11, 1964, unfair labor practice charges were filed by Jose Rodriguez, The Urban League of Greater New York, Inc., and The National Association for Puerto Rican Affairs; Isaac Borges and Bernard Allman did not file charges but they were witnesses and appeared at the hearing through counsel associated with the National Association for the Advancement of Colored People.

The conclusion of the Hearing Examiner, adopted by the Board, was that Local 2 struck Astrove on April 30 because of the threatened hiring of the four non-union men and not because of the sanitary condition grievance, and...