Corrugated Asbestos Contractors, Inc. v. NLRB

• Decision Date: 14 April 1972
• Docket Number: No. 71-2331.,71-2331.
• Citation: 458 F.2d 683
• Parties: CORRUGATED ASBESTOS CONTRACTORS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

458 F.2d 683 (1972)

CORRUGATED ASBESTOS CONTRACTORS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 71-2331.

United States Court of Appeals, Fifth Circuit.

April 14, 1972.

Sidney W. Provensal, Jr., New Orleans, La., for petitioner.

Victor H. Hess, Jr., New Orleans, La., Donald W. Fisher, Toledo, Ohio, for intervenor, Sheet Metal Workers International Ass'n., etc.

Charles M. Paschal, Jr., Regional Director, NLRB, Region 15, New Orleans, La., Marcel Mallet-Prevost, Asst. Gen. Counsel, NLRB, Michael S. Winer, Atty., NLRB, Washington, D.C., for respondent.

Before RIVES, COLEMAN and DYER, Circuit Judges.

DYER, Circuit Judge:

Corrugated petitions for review of a Board order dismissing the company's unfair labor practice charges filed against Sheet Metal Local 11 under the Labor Management Relations Act.¹ The heart of the company's charge is that the union, by refusing to renew its collective bargaining agreement with the company, and later disclaiming representation of the company's sheet metal employees, attempted to coerce the company in a jurisdictional dispute over the assignment of union craft work, in violation of Section 8(b) (4) (D) of the Act.² We have concluded that the charges were properly dismissed and accordingly deny the petition for review.

The company is engaged in engineering, finishing, fabricating, and installing industrial sheeting accessories. During the period in dispute, the company had four employees who fabricated sheet metal components at the company's New Orleans plant. They were represented by Local 11 of the Sheet Metal Workers International Association, and their work was covered by a collective bargaining agreement between the company and the Local, with a May 31, 1969 expiration date. The company had other employees who installed sheet metal siding on buildings at job sites throughout the country. They were represented by the Iron Workers Union under another collective bargaining agreement.

In late 1967 Corrugated was awarded a contract to install a certain type of corrugated metal siding on a building under construction in Kansas City, Missouri. As was its custom it awarded the installation work to employees represented by the Iron Workers Union. Because of the width of the corrugations in the siding to be installed, Local 11's sister union in Kansas City, Local 2, took the position that the installation of this siding fell within its jurisdiction and accordingly demanded that the company reassign the work. When Corrugated refused, Local 2 filed a grievance with the Kansas City Joint Adjustment Board for the Sheet Metal Industry (Kansas Board) which on January 10, 1968 upheld Local 2.

Corrugated promptly appealed this determination to the National Joint Adjustment Board for the Sheet Metal Industry (National Board) which on June 27, 1968 sustained the Kansas Board. The National Board ordered that in the future all work of the kind in dispute must be assigned to sheet metal workers and that noncompliance would result in automatic termination of Corrugated's contract with Local 11. Corrugated refused to comply. The National Board entered an order on December 13, 1968 declaring the collective bargaining agreement between the company and Local 11 canceled. On May 8, 1969, Local 11 notified Corrugated that in accordance with the directive and order of the National Board its contract would be cancelled as of its current expiration date, May 31, 1969, and would not be renewed unless and until the company complied with the directive of the National Board. The President of Local 11 further notified his members at Corrugated not to continue work following the expiration of the contract. The sheet metal workers complied until they were forced to return to the job by order of the United States District Court in September of 1969.

On May 29, 1969, Corrugated filed with the National Labor Relations Board a charge that Local 11 had violated Section 8(b) (3)³ of the Act by refusing to bargain with the company, and Section 8(b) (4) (D), by using its contract cancellation and refusal to bargain as a means of coercing Corrugated into assigning the work in dispute to the sheet metal workers represented by Local 2.

In accordance with Section 10(1) of the Act, the Board's Regional Director, having found reasonable cause to believe that Local 11 had violated the Act as charged, instituted proceedings in the United States District Court for the Eastern District of Louisiana seeking a temporary injunction against Local 11 engaging in the type of conduct prohibited by 8(b) (4) (D). On September 4, 1969, the District Court concluded that there was reasonable cause to believe that a violation of § 8(b) (4) (D) had occurred and issued an injunction pending disposition of the unfair labor practice charges by the Board. Paschal for and on behalf of N.L.R.B. v. Sheet Metal Workers International Association, Local Union No. 11, E.D.La.1969, 304 F.Supp. 684.

In accordance with § 10(k) of the Act the Board undertook to "hear and determine the dispute out of which the unfair labor practice" arose.⁴ On February 13, 1970, the Board issued its "Decision and Determination of Dispute", holding that there was reasonable cause to believe that Local 11 had engaged in action directed to forcing the assignment of work to sheet metal employees, in violation of § 8(b) (4) (D), and that the dispute was appropriately before the Board on an unfair labor practice charge. The merits of the jurisdictional dispute were resolved in Corrugated's favor, the Board holding that the union was "not entitled by means proscribed by Section 8(b) (4) (D) of the Act" to force Corrugated to assign the disputed work to the Sheet Metal Workers' International or any of its local unions. The union immediately notified the Board's Regional Director that it would refrain from the prohibited conduct, but refused to enter into collective bargaining negotiations with the company for the renewal of the contract that had expired. Furthermore, on March 30, 1970, Local 11 notified Corrugated by letter that it disclaimed any further interest in the representation of Corrugated's employees.

In October of 1970, an unfair labor practice hearing was held on the company's § 8(b) (3) and § 8(b) (4) (D) charges. In his decision of January 6, 1971, the trial examiner first focused upon the actions of the union prior to the issuance of the 10(k) determination. He found that by cancelling and refusing to renew its collective bargaining agreement with Corrugated the union intended to force the company to assign the disputed work to employees it represented, a clear violation of § 8(b) (4) (D). He further found a violation of § 8(b) (3) based upon the union's refusal to bargain collectively with Corrugated, but held that since § 8(b) (4) (D) covered conduct also violative of § 8(b) (3) in these circumstances, his attention need be directed only to the all inclusive § 8(b) (4) (D) violation.

The trial examiner was then called upon to determine whether the union had complied with the Board's Decision and Determination of Dispute, for if it had done so the matter was at an end. Compliance with the Board's decision in a 10(k) proceeding vitiates any pre-determined violation of § 8(b) (4) (D), for Congress designed such a procedure to allow the opportunity for settlement of labor disputes within the labor community before a complaint would issue under the initial charge.⁵ Considering then the post-10(k) determination period, the examiner found that the 10(k) order required the union to accept Corrugated's offer to sign a contract with Local 11 on the same terms as other union crafts in the New Orleans area. Since the union had not signed such a new contract, the examiner found that the 10(k) determination had not been complied with, and thus a violation of § 8(b) (4) (D) continued to exist.

Finally, the examiner considered the effect of the union's disclaimer of representation a few weeks after the 10(k) determination. While...