Eichleay Corp. v. National Labor Relations Board

• Decision Date: 26 August 1953
• Docket Number: No. 11003.,11003.
• Parties: EICHLEAY CORP. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Third Circuit

206 F.2d 799 (1953)

EICHLEAY CORP. v. NATIONAL LABOR RELATIONS BOARD.

No. 11003.

United States Court of Appeals Third Circuit.

Argued June 4, 1953.

Decided August 26, 1953.

Sherman T. Rock, Pittsburgh, Pa. (Theodore M. Burns, Jr., and Paul, Lawrence & Rock, Pittsburgh, Pa., on the brief), for petitioner.

Melvin Spaeth, Washington, D. C. (George J. Bott, Gen. Counsel, David P. Findling, Asst. Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Samuel M. Singer, Atty., National Labor Relations Board, Washington, D. C., on the brief), for respondent.

Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.

KALODNER, Circuit Judge.

The instant case is one of many¹ growing out of a running jurisdictional dispute between the United Brotherhood of Carpenters and Joiners of America (Carpenters) and the International Association of Machinists (I.A.M.). Petitioner, Eichleay Corporation (Eichleay) was engaged in the performance of an independent contract to alter a hot mill for the American Brass Company in Kenosha, Wisconsin. In the performance of this contract, it was necessary to employ men to dismantle and remove or to erect and install machinery. A representative of Lodge No. 34, I.A.M., filed a charge with the Board, charging that Eichleay was discriminating in regard to the hiring of employees because of their membership in Lodge No. 34 and was granting preference to members of the Carpenters. Pursuant to that charge, a complaint was issued by General Counsel, charging a violation of Section 8(a) (1) and (3) of the Act.² The Board found that Eichleay had violated those sections by entering into and enforcing an oral agreement or understanding conditioning the hire and tenure of employment of mill-wrights upon membership in the Carpenters Union. The Board therefore ordered Eichleay to cease and desist from thus violating the Act, to post notices at its main office at Pittsburgh, Pennsylvania and at its project in Kenosha, Wisconsin, and to notify the Regional Director within ten days from the date of the order as to what steps it had taken to comply therewith. 102 N.L.R.B. No. 63.

The case is before this Court upon the petition of Eichleay to review and set aside the aforementioned order. In its answer the Board has requested enforcement.

Eichleay contends that it was not engaged in interstate commerce and that the Board therefore had no jurisdiction; that the Board's findings on the merits are not supported by substantial evidence; and that an affirmance of the order of the Board would not effectuate the policies of the Act. Its contentions will be discussed in the order stated.

Jurisdiction

With respect to the question as to whether Eichleay was engaged in commerce³ within the meaning of the Act, the record discloses that it transported over state lines about $20,000 worth of small tools. Four key men on the project were brought in from outside Wisconsin. Eichleay contends that $20,000 represents only 2% of the total value of the contract between it and American Brass, and that four men are only a small percentage of the total number of employees involved in the project.

In enacting the Labor-Management Relations Act Congress sought to exercise fully its power over interstate commerce.⁴ The limits of that power are not to be defined solely by the extent of interstate activity involved in the particular case over which it is being asserted. In Polish National Alliance v. N.L.R.B., 1944, 322 U.S. 643, 648, 64 S.Ct. 1196, 1199, 88 L.Ed. 1509, Justice Frankfurter, speaking for the Court, said:

"Whether or no practices may be deemed by Congress to affect interstate commerce is not to be determined by confining judgment to the quantitative effect of the activities immediately before the Board. Appropriate for judgment is the fact that the immediate situation is representative of many others throughout the country, the total incidence of which if left unchecked may well become far-reaching in its harm to commerce." (Emphasis supplied.) Cf. N.L.R.B. v. American District Telephone Co. of Pa., 3 Cir., 205 F.2d 86.

On that score the record establishes that Eichleay at the time of the hearing before the trial examiner, had similar contracts with other large companies in eight other states. Furthermore, the written agreement by which Eichleay agreed to "recognize the jurisdiction claims of the United Brotherhood of Carpenters and Joiners of America" was an "International Agreement", in effect in all the localities in which it was performing similar services. That circumstance, together with the fact that so many other Courts have had virtually identical factual situations before them within the past two years,⁵ makes inescapable the conclusion that "the immediate situation is representative of many others throughout the country * * *", Polish National Alliance v. N.L.R.B., supra. Moreover, as this Court has observed in another case involving the construction industry:

"One small stoppage may not have an immediately perceptible effect upon the flow of the whole stream. But many small stoppages will have such effect * * * the power to regulate is not lost because of the small size of any individual contribution." Shore v. Building and Construction Trades Council, 3 Cir., 1949, 173 F.2d 678, 681, 8 A.L.R.2d 731.

We conclude therefore that the Board had jurisdiction over Eichleay.

The Merits

Eichleay contends that the record as a whole does not substantiate the Board's conclusion. The following is a description of the hiring practices complained of, as appears from the uncontradicted testimony in the record:

On July 8, 1948, Eichleay and the United Brotherhood of Carpenters and Joiners of America entered into an agreement providing that the former agreed "to recognize the jurisdiction claims of the * * * Carpenters * * *, to work the hours, pay the wages and abide by the rules and regulations established or agreed upon by the Carpenters * * * of the locality in which any work * * * is being done, and employ members of the * * * Carpenters * * * In consideration of the foregoing, the * * * Carpenters * * * agree that no stoppage of work or any strike of its members, either collectively or individually, shall be entered into pending any dispute being investigated and all peaceable means taken to bring about a settlement."

In July of 1951, immediately before construction began, Mr. Johnson, field superintendent for Eichleay at the American Brass Company project, entered into an oral agreement with Mr. Byrne, business representative of the Carpenters, Local 161, by which it was understood that members of that local would be hired to do the carpentry and millwright work. It was a familiar hiring hall arrangement whereby any time there was a job available Johnson would call Byrne, and if a man was available he was sent on the job. Mr. Byrne testified as follows:

"Q. Now when you have during the past year received requests from Mr. Johnson for carpenters to work on the Eichleay job in Kenosha, did you ever send anyone to Mr. Johnson who was not a member of your union? A. No, I haven\'t.

"Q. Were there occasions during the past year when Eichleay needed men and asked you for some but you did not have any here in Kenosha? A. Well, sure there was at times.

"Q. What did you do to obtain those men? A. Called the Milwaukee Millwright Local and got them sent in from Milwaukee.

"Q. And when these men were sent in were they sent in as members of the millwright or carpenter local in Milwaukee? A. That is right.

* * * * * *

"Q. If they had not been members of the Carpenters Union they would not have been given working cards, is that correct? A. That is correct."

It was one of the working rules of Local 161 that members of the Carpenters Union would not work alongside nonmembers.

Mr. Johnson readily admitted the existence of such an understanding and answered "Yes, sir" to the question "From your experience, Mr. Johnson you are aware, are you not, that the Carpenters Union when called upon for help would refer only members of their organization?"

Before any actual hiring was done, Mr. Johnson was approached by Mr. Ritter and Mr. Young, Grand Lodge representatives of the I.A.M., and asked by them to hire members of the I.A.M. to do the millwright work. Their request was refused. On this score Mr. Johnson testified:

"I told them it had been my practice to hire millwrights who were members of the Carpenters and Joiners of America due to jurisdictional claims.

"In other words, I am hiring carpenters and iron workers, millwrights and so forth, laborers, and of course my contention was that if I hired Machinists, consequently I wouldn\'t have any carpenters working on my job. That is merely an assumption, no one ever told me I would or I wouldn\'t."

No member of the I.A.M. ever applied for a job on the project. The following colloquy appears in the record:

"Q. In the event that the Machinists had any people that had actually come to your office and asked you for work as millwrights you would not have hired them would you, unless they had been referred by Mr. Byrne?

* * * * * *

"A. I would possibly have referred the applicant to Mr. Byrne.

* * * * * *

"Q. You wouldn\'t hire a man, though, without referring him to Mr. Byrne first? A. No, it has always been our practice to procure men through the business agent of the respective trades."

In short, what we have here is a hiring hall arrangement where the union admittedly referred only members and Eichleay was aware of it.

Eichleay, however, contends (1) that there is no evidence that it was obliged to hire only Carpenters, and (2) that the finding that there was such an agreement was based on pure speculation, since no member of the I.A.M. ever applied for a job.

We agree with Eichleay that "The factor in a hiring-hall arrangement which makes the device an unfair labor practice is the agreement to hire only union members referred to the employer." Del E. Webb Construction...