Cedar Rapids Block Company v. NLRB

• Decision Date: 18 June 1964
• Docket Number: 17472.,No. 17430,17430
• Citation: 332 F.2d 880
• Parties: CEDAR RAPIDS BLOCK COMPANY, Inc., and Cedar Sand and Gravel Company, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CHAUFFEURS, TEAMSTERS AND HELPERS, LOCAL UNION NO. 238, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

332 F.2d 880 (1964)

CEDAR RAPIDS BLOCK COMPANY, Inc., and Cedar Sand and Gravel Company, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CHAUFFEURS, TEAMSTERS AND HELPERS, LOCAL UNION NO. 238, Respondent.

Nos. 17430, 17472.

United States Court of Appeals Eighth Circuit.

June 18, 1964.

Robert E. Conley, of Connolly, O'Malley & Conley, Des Moines, Iowa, made argument for Chauffeurs, Teamsters and Helpers, Local Union 238, and filed brief for respondent in No. 17472.

D. G. Ribble, Cedar Rapids, Iowa, made argument for Cedar Rapids Block Company, et al., petitioner in No. 17430, and filed brief with C. J. Lynch, Cedar Rapids.

Richard P. Lawlor, Atty., N.L.R.B., Washington, D. C., made argument for N.L.R.B. and filed brief with Arnold Ordman, Gen. Counsel, N.L.R.B., Dominick L. Manoli, Associate Gen. Counsel, N.L.R.B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B. and Lee M. Modjeska, Atty., N.L.R.B., Washington, D. C.

Before VAN OOSTERHOUT, RIDGE and MEHAFFY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

These two cases, which were consolidated below, are before this court on the petition of the Cedar Rapids Block Company, Inc. (Block) and Cedar Sand and Gravel Company (Sand) to review and set aside the order of the National Labor Relations Board, and the cross-petition of the Board for enforcement; and on the petition for enforcement of the order against the Chauffeurs, Teamsters and Helpers, Local Union No. 238 (Teamsters) and the cross-petition to review.¹ Jurisdiction in this circuit is based upon the alleged occurrence of unfair labor practices in Cedar Rapids, Iowa.

The amended charge filed by the International Union of Operating Engineers, Local 234, of which the alleged discriminatee Clarence C. Johnson was a member, was against Block and Sand and was based upon the unlawful discharge of Johnson "because of his refusal to join or assist" Teamsters in violation of § 8(a) (1) and (3) of the National Labor Relations Act. 29 U.S.C.A. § 158(a) (1) and (3). Johnson filed an amended charge against Teamsters based upon its causing Block and Sand to discriminate against him "because of his lack of membership in the said labor organization" and thus violating § 8(b) (1) (A) and (b) (2) of the Act. 29 U.S.C.A. § 158 (b) (1) (A) and (b) (2).

Block manufactures and sells concrete building products and masonry wall reinforcing materials. Block has had a collective bargaining agreement with Teamsters for over a decade which covers employees at its J Street plant. In 1956 Block's sole local source of sand and gravel was shut down by a prolonged strike. After finding the cost of importing sand from an out-of-town supplier too prohibitive, Harold Spaight, the president of Block, decided to erect and operate a sand plant in an effort to insure against future difficulties in obtaining sand and against possible increases in price by the then existing monopoly. Spaight negotiated with Johnson and Ray Fox, and on October 29, 1956, they entered into an agreement with Sand under which Johnson and Fox agreed to be responsible for production, hiring, and maintenance of machinery. The sand plant was incorporated in May 1957 with Spaight owning all the stock; however, he sold the stock to Block in the spring of 1959, and Sand thereafter was operated as a wholly owned subsidiary. The sand plant started producing in the spring of 1957 and approximately 90 percent of its production was sold to Block. In 1958 Sand entered into a conventional labor agreement with Operating Engineers which agreement specifically approved of the prior agreement between Fox and Johnson and Sand.

In November of 1958 the sand plant was closed down for the winter and Block continued to purchase sand from the accumulated stockpile. Johnson was brought up to Block's J Street plant on a temporary basis until the next spring operations at the sand plant resumed. While at J Street, Johnson operated a portable boom crawler crane. By spring, Block decided it could buy sand more economically from its former supplier who was back in operation after the strike. However, the machinery and equipment were maintained as a type of insurance against a price increase or another strike and Johnson was retained on the payroll of the Sand Company so that he would be available to operate the now idle sand plant. Beginning in January 1959, and continuing until April 6, 1962, when he was notified of his discharge, Johnson spent less than 10 percent of his time at the sand plant where his primary task was the maintenance of the machinery for possible future use. Although the rest of the time was spent operating the crawler crane which was Block work, he was paid by Sand. Sand was reimbursed by Block for this work.

The presence of Johnson in the J Street plant where all the rest of the employees were covered by the Teamster's contract provides the setting for the heart of this controversy. The contract provided for a separate seniority system at the J Street plant; job vacancies were to be posted and were to be filled by bidding on the seniority basis. Seniority for bidding purposes dated from employment in that particular plant and not from employment by the company in other divisions or locations. Johnson's name was never included in the seniority lists posted. Although members of the Teamster unit were laid off from time to time, Johnson was not. He did not punch a timeclock as did the other J Street employees, and he was paid a guaranteed weekly wage whereas the other employees received only an hourly wage. The business agent for the Teamsters from the start contended the work done at J Street by Johnson was within their unit which would require Johnson to be represented by Teamsters for collective bargaining purposes. However, the manager of J Street plant and Johnson both continually asserted that Johnson was merely a Sand employee on temporary loan to J Street and the matter was allowed to ride as such for some time.

In the summer of 1961 Block acquired an overhead crane and Johnson helped in its installation in the J Street plant which was completed in the latter part of April 1962. It became apparent to all concerned that the overhead crane would be a permanent part of the J Street plant, and that it would do not only the work previously performed by Johnson with the crawler crane, but also work done by a lift truck which was operated by an employee who was a member of the unit. Teamster representatives again asserted its coverage by their contract and the manager of the J Street plant agreed. Johnson hoped to be assigned to the new crane although he knew that Teamsters were claiming the job as within their unit, and he knew that he had no seniority even if it be assumed that his seniority did in fact commence from January 1959, when he began spending a majority of his time at J Street, since Joe Shuff who eventually did get the job, had seniority from May 1958.

At approximately the same time that the overhead crane was nearing the completion of its installation, the question of what to do with the sand plant was also coming to a head. After an additional source of sand and gravel became available in the Cedar Rapids area due to the planned establishment of a plant by another businessman, the decision to sell the sand plant was made in the first week of April 1962. In a letter dated March 29, 1962, Johnson received notice of his discharge which read: "Due to the inactivity of our sand operation and causes beyond our control, your employment with this company will terminate as of Friday, April 6." About one month prior to his discharge, the manager of J Street had a conversation with Johnson in which he suggested three alternatives which remained open to him: (1) accept employment by the Block Co. and let Block negotiate with Teamsters to give him a preferred place on the seniority list; (2) become a Block employee in the usual manner at the foot of the list; or (3) do nothing. Johnson refused to consider any position other than that of overhead crane operator.

The Trial Examiner considered the sole issue in both of these cases to be whether the discharge was occasioned by his lack of membership in Teamsters and found the reason for the discharge to be that the disposition of the sand plant meant that his retention as potential operator of that plant was no longer warranted. The Trial Examiner found that whatever pressure was being exerted by Teamsters was aimed at the inclusion of the overhead crane job in their unit — not at the joining of their union.

The Trial Examiner, for adequate reasons set out in his report, credited the testimony of the employer in instances where the evidence was in conflict.

The Examiner found that Johnson was an employee of Sand, not Block, and that he was terminated by Sand because his services were no longer needed by reason of the closing and disposition of the Sand plant.

The Examiner found no merit to the General Counsel's contention that Johnson was a part of the bargaining unit at the J Street plant and further found that even...