George Koch Sons, Inc. v. NLRB, 73-1019

• Citation: 490 F.2d 323
• Decision Date: 14 December 1973
• Docket Number: No. 73-1019,73-1480.,73-1019
• Parties: GEORGE KOCH SONS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. LOCAL UNION NO. 438, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPEFITTING INDUSTRY OF the UNITED STATES AND CANADA, AFL-CIO, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

490 F.2d 323 (1973)

GEORGE KOCH SONS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

LOCAL UNION NO. 438, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPEFITTING INDUSTRY OF the UNITED STATES AND CANADA, AFL-CIO, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 73-1019, 73-1480.

United States Court of Appeals, Fourth Circuit.

Argued October 3, 1973.

Decided December 14, 1973.

Winthrop A. Johns, Washington, D.C. and Joseph A. Yocum, Evansville, Ind. (Johns & Zimmerman, Washington, D.C. and Kahn, Dees, Donovan & Kahn, Evansville, Ind., on brief), for petitioner in No. 73-1019.

Gerard C. Smetana, Chicago, Ill. (Milton A. Smith, Gen. Counsel, Otto F. Wenzler and Richard B. Berman, Labor Relations Counsel, Washington, D.C., S. Richard Pincus, Lederer, Fox & Grove, Chicago, Ill., on brief), for amicus curiae, The Chamber of Commerce of the United States in No. 73-1019.

Vincent J. Apruzzese, Springfield, N. J. (Francis A. Mastro, Apruzzese & McDermott, Springfield, N.J., on brief), for amici curiae, Public Service Electric and Gas Co., etc., in Nos. 73-1019 and 73-1480.

Cosimo C. Abato, Baltimore, Md. (Anthony A. Abato, Jr., Bracken & Abato, P. A., and Paul E. Gaeng, Baltimore, Md., on brief), for petitioners in No. 73-1480.

Roger C. Hartley, Washington, D.C. (Patrick C. O'Donoghue and Donald J. Capuano, Washington, D.C., on brief), for amicus curiae, United Assn.

Kenneth C. McGuiness and Robert E. Williams, Washington, D.C., on brief for amici curiae, Air-Conditioning and Refrigeration Institute, and others.

Jay E. Shanklin, Atty., N.L.R.B. (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Asst. Gen. Counsel, Washington, D.C., on brief), for respondent in Nos. 73-1019 and 73-1480.

Before BRYAN, Senior Circuit Judge, and CRAVEN and WIDENER, Circuit Judges.

ALBERT V. BRYAN, Senior Circuit Judge:

A secondary boycott in violation of the National Labor Relations Act, Section 8(b)(4)(i)(ii)(B), 29 U.S.C. § 158(b)(4)(i)(ii)(B), as amended,¹ was pursued by each of two labor unions, the National Labor Relations Board has found.² On the charges of a general contractor,³ complaints were issued and jointly heard. In both cases the contractor, while accepting the Board's decision, nevertheless sought review in an endeavor to broaden the fact findings and legal conclusions; the unions asked vacation of the Board's remedial order. Countering, the Board prays enforcement of its order. We enforce the order.⁴

With a hearing before the Trial Examiner waived, the controversy was put before him on briefs and facts agreed. The Board adopted the "findings, conclusions and recommendations of the Administrative Law Judge the Examiner", summed up as follows:

"The relevant stipulated facts as noted by the Administrative Law Judge show that on June 17, 1970 George Koch Sons, Inc., hereinafter Koch, was awarded a contract by General Electric Company, hereinafter G.E., for the design, manufacture, and installation of two industrial finishing systems to be used in the preparation of metal appliances at G.E.'s plant in East Columbia, Maryland. Pursuant to a contract interpretation calling for the pretesting of certain pipes for this system, Koch prefabricated certain pipes at its Indiana facility using its own employees to do this fabrication work. Thereafter, this pipe was utilized to pretest the systems.

"Koch subcontracted to Phillips Plumbing and Heating Co., hereinafter Phillips, the work of installing all pipe required in the final assembly of the systems at the G.E. site. Pursuant to its contract with Koch and the specifications made a part thereof, Phillips was required to install, inter alia, the prefabricated pipe.

"Both Respondents the unions had a current agreement with the Mechanical Contractors Association of Maryland, hereinafter the Association. Although not a member of the Association, Phillips was a signatory to the current agreements and, pursuant to their provisions, employed members of Respondent Local 48 for plumbing work and members of Respondent Local 438 for steamfitting-pipefitting work. Both of these agreements contained the following clause:

`All pipe of any size used on the job shall be cut and threaded by journeymen and apprentices either by machine or by hand and all fitting to be made up (of any size), caulked, or otherwise, fitted to any pipe, must be done on the job or in the contractor\'s shop by journeymen and apprentices.\'

As a result of these provisions, which have been included in the Respondents' collective-bargaining agreements for years, the cutting, threading, and fitting of pipes have customarily been performed on the jobsite or in shops within the Baltimore vicinity by individuals who are employed by the employers signatory to the agreements and who are members of or are represented by the Respondents.

"Beginning about March 15, 1971, Koch shipped both the prefabricated pipe (that used in the pretesting) and certain nonprefabricated pipe to the G.E. jobsite. The employees of Phillips represented by the Respondents worked on and installed the nonprefabricated pipe without incident. But, when Phillips attempted to assign the work of installing the prefabricated pipe to the employees represented by the Respondents, Phillips was told by officers and agents of both Respondents that the Respondents would not let their members or employees represented by them install that prefabricated pipe because it had not been cut, threaded, and fitted on the jobsite or in Phillips' shop in accordance with the above-quoted provisions of their agreements with the Association. Thereafter, since on or about May 1, 1971, Phillips' employees who were members of or represented by the Respondents, pursuant to instructions from Respondents' officials, refused to install the prefabricated pipe although requested to do so by Phillips, while they continued to install the nonprefabricated pipe.

"The Administrative Law Judge concluded that `by the actions of their officers and agents in stating to Phillips that they would not allow employees of Phillips who were members of or represented by Respondents to install the prefabricated pipe on the G.E. job because the pipes were not cut, threaded, and fitted with the facilities on the jobsite or in Phillips' shop by employees represented by Respondents, or by so instructing employees of Phillips, both Respondents violated Section 8(b)(4)(i) (ii)(B)' of the Act.

"We agree with this conclusion of the Administrative Law Judge. However, in view of the importance of the issue presented, we deem it necessary to explicate in detail our reasons for doing so." Footnotes omitted.

Thereupon the unions were directed to "cease and desist" from encouraging employees to refuse to perform services where the object was to force Phillips to refrain from installing prefabricated pipe. For us this conduct examples the classic secondary boycott. NLRB v. Operating Engineers, 400 U.S. 297, 302, 303, 91 S.Ct. 402, 27 L.Ed.2d 398 (1971). It is fair to state now that we see the Board's decision, adjudging the unions guilty of a secondary boycott, firmly bottomed on substantial evidence.

The unions bear down on the Board's opinion as but an all-out exploitation of the "right-to-control" doctrine. Untangled, the doctrine is that if an employer is not legally empowered to meet his employees' demand, then they cannot lawfully strike him for his failure to accede. Applied now, the clauses of the Phillips-union agreements — that the pipe must be cut and threaded on the jobsite or at Phillips' shop — could not be pressed against Phillips if it was not vested with the right to fix where pipe fabrication would be done.

The unions dismiss "right-to-control" as obsolete dogma, discredited, if not fully eclipsed, by National Woodwork Manufacturers Ass'n v. National Labor Relations Board, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967). Further, it is argued that this gauge, if at all still viable, is now misconceived by the Board as the end-all, critical determinant that a boycott is secondary rather than primary. Additionally, the unions expound those in suit to be work preservation clauses, purposed solely to retain for the Phillips' employees tasks customarily performed by them and avouched in National Woodwork to be a traditional right of labor, in no wise affronting the Act.

In replication, the Board and Koch denounce the clauses as actually projected by the unions to be "tactically calculated to satisfy union objectives elsewhere." National Woodwork, at 644, 87 S.Ct. at 1268. When so activated, the argument runs, the restrictions engender the forbidden secondary boycott. Cf. NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675, 686, 687, 71 S.Ct. 943, 95 L.Ed. 1284 (1951).

The unions err. National Woodwork did not scuttle the "right-to-control" test for, obviously, the point was not before the Court. 386 U.S. at 616-617, fn. 3, 87 S.Ct. 1250. Nor does the Board presently write in disregard of National Woodwork. Rather, it reads that decision for what it is, a delineation of that degree of proof which establishes a permissible primary boycott but falls short of evidencing the interdicted secondary boycott.

Further, National Woodwork, at 644-645, 87 S.Ct. at 1268, after defining a preservation-of-work boycott, signally declares that when "the agreements and boycott were tactically calculated to satisfy union objectives elsewhere" they present a secondary boycott. The further lesson of National Woodwork is that the ascertainment of whether the "agreements and boycott" do have this effect can be made only upon inquiry of "all the surrounding circumstances". Notably, right-to-control is not excluded from this...