George Koch Sons, Inc. v. NLRB, No. 73-1019

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: BRYAN, Senior Circuit , and CRAVEN and WIDENER, Circuit
• Citation: 490 F.2d 323
• 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.
• Docket Number: No. 73-1019,73-1480.
• Decision Date: 14 December 1973

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.

490 F.2d 324

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. §

490 F.2d 325

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.\'

490 F.2d 326

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...