Glaziers Local Union 558 v. N.L.R.B.

• Decision Date: 31 March 1986
• Docket Number: No. 84-2291,84-2291
• Citation: 787 F.2d 1406
• Parties: 122 L.R.R.M. (BNA) 2008, 54 USLW 2583, 104 Lab.Cas. P 11,824 GLAZIERS LOCAL UNION 558, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1406

787 F.2d 1406

122 L.R.R.M. (BNA) 2008, 54 USLW 2583,

104 Lab.Cas. P 11,824

GLAZIERS LOCAL UNION 558, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 84-2291.

United States Court of Appeals Tenth Circuit.

March 31, 1986.

David M. Silberman, Washington, D.C. (John Hurley of Jolley, Moran, Walsh, Hager & Gordon, Kansas City, Mo., David Barr of Barr & Peer, Washington, D.C., and Laurence Gold, Washington D.C., with him on the briefs), for petitioner.

Robert Bell (W. Christian Schumann and Daniel R. Pollitt on the brief), N.L.R.B., Washington, D.C., for respondent.

Before McKAY and MOORE, Circuit Judges, and WEST, District Judge. ^*

JOHN P. MOORE, Circuit Judge.

Kenneth Orr filed a complaint with the National Labor Relations Board (the Board) charging Glaziers Local Union 558 (the Union) with unfair labor practices in violation of Sec. 8(b)(2) and, derivatively, Sec. 8(b)(1)(A) of the National Labor Relations Act (the Act). The complaint alleged that the Union caused PPG Industries (PPG) to discriminate against Orr and another nonunion employee, William Gooch, Jr., by forcing PPG to fire them. Orr contended their firing was precipitated by a walkout of union members designed to bring about the termination of nonunion employees. The case was brought before an administrative law judge (ALJ) who found there was no persuasive evidence to support the allegation that the Union caused the walkout. The ALJ further concluded that even if the Union were responsible for the jobsite walkout, the evidence failed to establish that the actual motive of the Union was to cause PPG to discriminate against employees on the basis of nonunion status. Accordingly, he dismissed the complaint. After consideration of the ALJ's findings, supplemented by testimony on which he did not explicitly rely, the Board reversed the dismissal of the complaint, concluding that the Union illegally caused PPG to fire Orr and Gooch. The case is before this court on the Union's petition for review and the Board's cross-application for enforcement of its order. Because we conclude that the Board's decision is not supported by substantial evidence on the record as a whole, we reverse its order.

I.

PPG manufacturers, sells, and installs glass products in Kansas and Missouri, as well as in other areas of the country. Through Mo-Kan, a multiemployer bargaining association, PPG and the Union were parties to a series of labor agreements, including one in effect during the events underlying this controversy. That agreement made general references to two classes of glaziers, "journeymen" and "apprentices," while setting forth one wage rate. Glaziers were employed by Mo-Kan employers pursuant to a formal industry apprenticeship training program, which was established by a separate agreement incorporated by reference into the Mo-Kan agreement. ¹ The Mo-Kan agreement also contained a lawful union security clause requiring employees to become members of the Union after a grace period. It further included a "no-strike" clause, a commitment by the Union not to strike over disputes arising under the contract.

While the Mo-Kan agreement did not specify procedures or priorities for the hiring and referral of employees on construction jobs, the long-standing practice among Mo-Kan employers was to use the Union as the primary source for referral of glaziers. When the Union was unable to locate glaziers to satisfy employer requests, Mo-Kan employers directly hired employees to work as glaziers. According to custom on Mo-Kan jobs, direct hires were referred to the Union to obtain a "permit," a certificate which established that the holder had been hired with the knowledge and acquiescence of the Union. The permit system was designed to prevent potential jobsite harassment by employees in other trades or from union representatives policing compliance with union security agreements. The union security clause in the Mo-Kan agreement was not customarily enforced against permit holders, apparently due to the fact that permits were issued only for the duration of a job or thirty days, whichever period was shorter. Therefore, according to the traditional practice followed by the Union and Mo-Kan employers, permit men enjoyed only a temporary status and were replaced with journeymen when journeymen became available for referral by the Union. ² Deviation from this traditional practice is at the heart of this dispute.

From approximately June 1981 through March 1982, PPG was engaged in the installation of window glass on a project known as the "North Supply job" in Gardner, Kansas. In August 1981, regular glass installation work commenced at the jobsite. To fulfill its requirements for glaziers, PPG, through construction manager William Gooch, Sr., requested referrals of journeymen glaziers from the Union. At some point in August, Jack Zander, the Union's business representative, informed Gooch that the Union was unable to locate additional journeymen in the area. PPG then resorted to direct hiring, eventually employing seven or eight persons, including Kenneth Orr and William Gooch, Jr., construction manager Gooch's son. ³ All of the direct hires were referred to the Union for temporary work permits, which were issued without incident.

On several occasions in October 1981, Zander or Charles Foland, assistant business representative for the Union, notified PPG through construction manager Gooch that there were journeymen available for referral to the North Supply job. The Union repeatedly requested that permit men on the job be replaced with the available journeymen. On each occasion, Gooch refused, stating that he was satisfied with the permit employees and that he was not interested in additional employees at that time. ⁴ Zander complained to Gooch that the company's refusal to replace permit men with available journeymen glaziers was not "the way that this thing has been operated"; that it would "destroy the apprenticeship program"; and that it "was not fair to the apprentices and the way that the apprenticeship program has been run in the past." Gooch remained steadfast in his refusal, and no further discussions on the subject transpired between Gooch and Union representatives until January.

Between the end of October and early January, dissatisfaction with PPG's refusal to replace the permit men increased among union glaziers on the North Supply job. While visiting the jobsite on an unrelated matter, Zander spoke with James Davis, a journeyman member of the Union, who stated that he and other workers "didn't want to put up with it and they were going to walk off." Zander testified that he advised Davis that a walkout would be in violation of the contract and that "it just couldn't happen." Employee concern over the situation was raised during at least two union meetings between October and January. On each occasion, Zander informed members that the Union had done all it could to accomplish the replacement of the permit men with journeymen. He informed the members that they would have to quit their jobs and seek employment elsewhere if they were dissatisfied with working conditions at the jobsite. Zander reiterated that the Union could not instigate a walkout or strike. ⁵ In response to specific questions from members, Zander stated that union bylaws provided for fines against members who continued to work alongside permit men. However, he also maintained that neither he nor any union officer would prefer charges for that reason, but other members could not be prevented from filing charges. Zander also stressed that he would personally prefer charges against any member who attempted to instigate a walkout.

On December 31, 1981, assistant business representative Foland contacted Gooch to inform him of the availability of qualified journeymen as a result of a strike at Atlas Glass in Kansas City. Once again, Gooch responded that he was not interested in additional employees. Several days thereafter, a union job steward, Paul Serna, approached Ernie Kraner, PPG's North Supply project manager, to express his dissatisfaction with the fact that journeymen glaziers were out of work while permit men remained on the job. A similar conversation was repeated a few days later.

The dispute came to a head on January 7, 1982. At that time, the crew at the North Supply job had been reduced through layoffs leaving a group of journeymen, a group formally involved in the apprenticeship program, a group of "waiting" apprentices, and Orr and Gooch, Jr. In at least one conversation with Kraner during the day, Serna stated his intention to "finish out the day" and "quit" and requested that his final paycheck be mailed to him. Serna indicated that other men on the job would not be content to work "under those conditions" with permit men while journeymen were without work. Later in the day, two apprentices left the North Supply job without explanation. That evening, Jack Griffin, the general foreman, notified Kraner of his intention to take "a day of vacation" the next day. Arthur Jackson, the working foreman, stated that he would quit or be sick if the situation with the permit men was not straightened out. At the beginning of the workday the following morning, only three employees, Orr, Gooch, Jr., and a waiting apprentice reported for work. By 9 a.m., the waiting apprentice had disappeared from the work site.

On January 8, 1982, after discussing the situation at the North Supply job, Kraner and Gooch decided to discharge Gooch, Jr., and Orr and to attempt to recall the other employees, concluding that was the only way PPG could complete the job. Kraner then telephoned foremen Griffin and Jackson and asked them to return to work. Kraner also requested that Griffin and Jackson attempt to persuade other workers to return to work on the North Supply job. Gooch telephoned Zander to inquire about ways to get glaziers back on the job. Zander replied that most of the...