467 F.2d 579 (9th Cir. 1972), 71-1252, N.L.R.B. v. Universal Services, Inc. & Associates

Docket Nº:71-1252.
Citation:467 F.2d 579
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNIVERSAL SERVICES, INC. AND ASSOCIATES, Respondent.
Case Date:October 10, 1972
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 579

467 F.2d 579 (9th Cir. 1972)

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

UNIVERSAL SERVICES, INC. AND ASSOCIATES, Respondent.

No. 71-1252.

United States Court of Appeals, Ninth Circuit.

October 10, 1972

Page 580

Donald W. Savelson (argued), Leonard M. Wagman, Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Peter G. Nash, Gen. Counsel, NLRB, Washington, D. C., Charles M. Henderson, Director, Region 19, NLRB, Seattle, Wash., for petitioner.

Dustin C. McCreary (argued), of Bogle, Gates, Dorin, Wakefield & Long, Seattle, Wash., for respondent.

J. Duane Vance, of Vance, Davies & Roberts, Seattle, Wash., for amicus curiae.

Before CHAMBERS and WRIGHT, Circuit Judges, and LUCAS, [*] District Judge.

LUCAS, District Judge.

The National Labor Relations Board seeks enforcement of its order which is based upon the finding that Universal Services, Inc. and Associates has violated the National Labor Relations Act, as amended. The charge directed against Universal states that it discharged five of its employees "for their having engaged in concerted activities, and/or their engaging in union activities . . ." and that it "at all times subsequent to [the date of discharge] has refused to reinstate said employees." The Board's decision is reported at 184 N.L.R.B. 42.

The Board found that Universal violated section 8(a)(1), 29 U.S.C. § 158(a)(1), which makes it an unfair labor practice to interfere with, restrain or coerce employees in the exercise of

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their rights guaranteed under section 7, 29 U.S.C. § 157. That section guarantees to employees "the right . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . ." The trial examiner found that the activity engaged in by the five employees was protected concerted activity not prohibited by the provisions of the particular agreement in question. Specifically, he found that neither the local nor the individual employees agreed to be bound by the provisions of the agreement relating to grievance procedures, or the deprivation of the right to strike. The Board agreed with the trial examiner's ultimate conclusions that the local and the employees were not bound by the contract, but for different reasons. The Board reasoned that no "clearly definable contract" existed between the respondent and the local at the time of the incident, consequently, the men could not have been bound by any provision restricting their right to strike. We disagree with the reasoning and findings of both the trial examiner and the Board, and find an enforceable contract governed the rights and duties of the parties to the labor dispute.

I.

The geographical location of the dispute in this case is of particular significance. The labor incident occurred during construction work performed for the Federal government preparatory to nuclear testing by the Atomic Energy Commission on the island of Amchitka, located approximately fourteen hundred miles southwest of Anchorage, Alaska at the end of the Aleutian Island chain. As its location suggests, this is a desolate, unpopulated place with only government authorized personnel residing thereon. See discussion infra.

Prior to 1966, Universal had furnished support services, including maintenance and operation work, under a contract with the United States Army Corps of Engineers. 1 On November 30, 1966, Universal executed a collective bargaining agreement with Local 302, International Union of Operating Engineers, effective from July 1, 1966, to June 30, 1969. Under this agreement, Local 302 was recognized as the exclusive bargaining agent for all maintenance and operational employees of Universal involved in the White Alice project. This contract contained express provisions outlining grievance procedures, and prohibiting the right to strike. 2 In late 1966, three employees from the White Alice project were assigned to the Corps of Engineers on Amchitka. These men participated in the maintenance and operation work being performed on that island for the Commission.

On February 15, 1967, Universal and Local 302 executed a "Supplement" to the basic agreement extending the coverage of the latter to the operations on Amchitka. This supplement set forth five "clarifications," but "[a]ll other terms and conditions [were to] remain the same." 3 Subsequently, the two parties executed a cryptic, one-page memorandum agreement simply entitled "1968," which was to reflect the "wages, hours and conditions" of employment on

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the island. This document's fourteen paragraphs established a "Basic Day," a "Basic Work Week," travel time on the island, overtime, designation of paydays and holidays, vacations, sick leave, food and lodging, termination of employment, and wage, pension, and health and welfare rates. No reference was made to the prior documents, nor to grievance procedures and work continuity.

In March, 1967, Universal was contacted by an official from Local 341, Construction and General Laborers' Union, about supplying laborers for the Amchitka project. Universal notified Local 302 and arranged for negotiations. Subsequent conferences resulted in an oral agreement between the three principals that Local 341 would supply some laborers under the existing contract. 4 During the first half of 1968, Local 341 members were formally dispatched through Local 302, however, in the latter half due to a "terrific build up of personnel on the island," laborers were dispatched directly from Local 341 to "expedite matters." The five employees involved in the dispute were part of this rapid influx of laborers from the mainland.

After their arrival, friction developed between a group of laborers and their foreman, St. Pierre. The men learned that there was a union project steward working for another contractor at a different location on the island, but they were unable to contact him as to their differences with St. Pierre. In any event, St. Pierre refused to accept that steward's jurisdiction over the men's grievances, and told them to elect their own steward. The steward elected, one Julsen, attempted to secure a copy of the union agreement from the project manager, however, the project manager did not have access to a copy at that time. The men held a meeting and submitted a list of their grievances to St. Pierre. The unresolved tension between St. Pierre and the men increased. Particular testimony indicated that the foreman probably aggravated these conditions by inconsiderate supervision and racial epithets directed toward one of the men. This was the setting for the series of events which incited the work stoppage.

On December 22, 1968, the men were assigned to unload a barge. While awaiting the arrival of the barge, all of the men, including the foreman, spent several hours either relaxing or dozing in the warmth of a shed, except for brief moments when some of them would step outside for fresh air. The barge arrived and the men unloaded. The following day St. Pierre brought the elected steward, Julsen, and a Negro, Blount, before the acting project manager, Anderson, and informed the latter that the two men were fired for sleeping on the job. The men reported this action to their colleagues. On December 24th, the men gathered to discuss the two discharges and the grievances they wished to present to Anderson.

The taped record of the presentation of grievances to Anderson on December 25th indicates that a substantial personality conflict in fact existed between St. Pierre and the men, and that both had made some attempt to ameliorate differences. In the end, they were unable to arrive at an understanding, and Anderson chose to stand by his foreman. After the meeting, only St. Pierre, and...

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