NLRB v. Consolidated Constructors and Builders, Inc., 7143.

• Decision Date: 14 February 1969
• Docket Number: No. 7143.,7143.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CONSOLIDATED CONSTRUCTORS AND BUILDERS, INC., and United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local 621, Respondents.
• Court: U.S. Court of Appeals — First Circuit

406 F.2d 1081 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CONSOLIDATED CONSTRUCTORS AND BUILDERS, INC., and United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local 621, Respondents.

No. 7143.

United States Court of Appeals First Circuit.

February 14, 1969.

Joseph A. Yablonski, Atty., with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, and Glen M. Bendixsen, Attys., Washington, D. C., were on brief, for petitioner.

Norman S. Reef, with whom Herbert H. Bennett, Portland, Me., was on brief, for respondents.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

This is a petition for enforcement of a Labor Board order. The order is based on findings that Respondents, Consolidated Constructors and Builders, Inc., (Consolidated) and Local 621¹ violated § 8(a) (3) and (1) and § 8(b) (2) and (1) (A) of the National Labor Relations Act in connection with the discharge of two of Consolidated's employees.

For many years prior to 1966 Consolidated, a Maine construction company, had a succession of labor contracts with Local 621, a Maine labor union. In addition to carpenters, these contracts specifically covered millwrights² and provided a millwright rate of twenty-five cents an hour higher than that listed for journeymen carpenters. On June 15, 1966,³ the International, Local 621's parent union, chartered a new local known as Local 1219 with jurisdiction to represent all millwrights in the State of Maine.

At or about the time this new local was chartered, Local 621 and Consolidated were in the process of negotiating a new contract. Acting on instructions from International, Local 621 refused to bargain on behalf of the millwrights. On July 21, Consolidated filed refusal to bargain charges against Local 621 and the International. This dispute was resolved, but there is some confusion in the record as to precisely how and when. At any rate, on August 15 an agreement was reached at the bargaining table. The agreement was then reduced to writing and was executed on October 11, effective August 15. Since the old contract, due to expire on July 15, had been extended into August by oral agreement while the bargaining continued, at no time were the parties without a contract.

The new contract provided inter alia for a union shop and under it all new employees doing work over which Local 621 claimed jurisdiction were required to join that local seven days after their employment began. For present purposes, however, the most significant provisions of the new contract are contained in Article IV entitled "Trade Autonomy." Section 1A of this article provides as follows:

"Section 1A. The trade autonomy of the United Brotherhood of Carpenters and Joiners of America consists of milling, fashioning, joining, assembling, erecting, fastening, or dismantling of all material of wood, hollow metal or fiber, or of products composed in part of wood, hollow metal or fiber, and laying of all cork and compo, all shingles, the erecting and dismantling of machinery and the manufacturing of all wood materials, where the skill, knowledge and training of a carpenter are required, either through the operation of machine or hand tools." (Italics ours)

Section 1B provides, "our claim of jurisdiction * * * extends over the following divisions and subdivisions of the trade." After enumerating the various classifications covered, it states: "provided, however, that nothing herein shall be intended or interpreted as a claim by the Union of any of the trade autonomy or trade jurisdiction of Millrights." sic

In August, Consolidated hired two experienced millwrights named Clark and Sprague to work on the construction of a paper mill in Madawaska, Maine. Both had been members of Local 621 but when Local 1219 was chartered they withdrew from Local 621 and joined the new local. The great majority of the millwrights on the Madawaska job, however, were members of Local 621 and there was resentment that Clark and Sprague were not. The record indicates that although these two men were warned by representatives of Local 621 that they had to join Local 621 in order to work on the project they did not do so. Also, there was talk among the millwrights of a work stoppage if Consolidated allowed these two employees to continue to work without becoming members of Local 621. In the six weeks or so that Clark and Sprague were on the job this resentment grew until finally on September 21 Local 621's shop steward told Consolidated's job superintendent that there would be a work stoppage if Clark and Sprague continued on the job without joining Local 621. The next day the job superintendent asked these two employees if they had joined Local 621 and when they replied that they had not, he fired them.

The Board found that the contract between Consolidated and Local 621 in force at the time Clark and Sprague were fired was not intended to cover millwrights; hence these two employees could not lawfully be discharged under the contract's union shop provision. The Board further found that Consolidated discriminatorily discharged Clark and Sprague and that Local 621 by threatening a work stoppage, caused Consolidated to discriminate against them, thereby engaging in the unfair labor practices above mentioned. Accordingly, it entered the order here sought to be enforced.⁴

The first question presented for our determination is whether the Board erred in finding that millwrights Clark and Sprague were not intended to be within the contract unit. Consolidated argues⁵ that since Clark and Sprague were discharged in the interim between August 15 when the agreement was reached and October 11 when it was executed, only the oral agreement was then in force and that parol evidence must be received to determine what actually...