Local 644, United Broth. of Carpenters and Joiners of America, AFL-CIO v. N.L.R.B.

• Decision Date: 10 February 1976
• Docket Number: P,AFL-CI,No. 73-1144,73-1144
• Citation: 175 U.S.App.D.C. 1,533 F.2d 1136
• Parties: 91 L.R.R.M. (BNA) 2140, 175 U.S.App.D.C. 1, 78 Lab.Cas. P 11,207 LOCAL 644, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA,etitioner, v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1136

533 F.2d 1136

91 L.R.R.M. (BNA) 2140, 175 U.S.App.D.C. 1,

78 Lab.Cas. P 11,207

LOCAL 644, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD.

No. 73-1144.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 30, 1974.

Decided Dec. 30, 1975.

Rehearing Denied Feb. 10, 1976.

Bernard M. Mamet, Chicago, Ill., for petitioner.

Robert G. Sewell, Atty., N.L.R.B., with whom John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, and Elliott Moore, Acting Asst. Gen. Counsel, N.L.R.B., were on the brief for respondent. Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., also entered an appearance for respondent.

William A. Ziegler, Jr., New York City, was on the brief for intervenor Babcock and Wilcox Co.

Arthur B. Smith, Jr., entered an appearance for intervenor, Morrison Constr. Co.

Before LEVENTHAL, MacKINNON and WILKEY, Circuit Judges.

Opinion for the court filed by Circuit Judge MacKINNON.

Dissenting opinion filed by Circuit Judge LEVENTHAL.

MacKINNON, Circuit Judge:

Upholding the decision of its Administrative Law Judge (ALJ), ^* the National Labor Relations Board ruled that Local 644 of the United Brotherhood of Carpenters and Joiners of America had violated section 8(b)(4)(ii)(B) of the National Labor Relations Act ¹ by engaging in a strike designed, through threatening, coercing and restraining certain general contractors, to force them to cease doing business with a subcontractor (Kinnear) because he had not signed an agreement with Local 644. ² The Union appeals this decision, insisting that it sought only to enforce a legitimate work preservation clause against a primary employer. The Board has cross-applied for enforcement of its order, and Morrison Construction Company and Babcock & Wilcox Company, charging parties before the Board, have intervened in these proceedings. Because we agree with the Board that the Union's acts indicated alternative objectives, not only to preserve traditional work but also to unionize employees outside the unit, we affirm.

I.

In 1970 the Commonwealth Edison Company initiated construction of a multimillion dollar power plant near Pekin, Illinois. Walsh Construction Company was designated general contractor in charge of erection of the plant's superstructure; Babcock &amp Wilcox Company, Morrison Construction Company, and Eichleay Corporation were also general contractors on the project, respectively responsible for the installation of a steam generator, major piping, and a turbine generator. Each of these contractors employed carpenters and millwrights represented by Local 644, the affiliate of the United Brotherhood of Carpenters and Joiners of America with territorial jurisdiction in Tazewell and Mason Counties, Illinois. Functioning as bargaining representative for all Carpenter Union employees in these counties, Local 644 had negotiated a collective bargaining agreement with the Home Builders Association of Tazewell County, a multiemployer group consisting of all employers "throughout the entire jurisdiction of the union." ³ Walsh was not a member of the Tazewell County Association and had not signed an agreement directly with Local 644. However, there was a contract between Walsh and the Carpenters' International Union in which Walsh had agreed to recognize the jurisdictional claims of the International and its affiliates for on site work ⁴ and to abide by the wages, hours and working conditions established or agreed upon by any subordinate of the International in any locality where work of the company is being done. Significantly, the contract with the International also required that Walsh would not subcontract jobsite work within the International's jurisdiction except to a subcontractor who either held an agreement with the International or one of its affiliates, or who had agreed in writing to be bound by the terms of such an agreement. ⁵

Walsh let a subcontract to Kinnear Corporation for fabrication off site and erection on site of seven roll-up steel doors. Kinnear arrived at the project on September 20, 1971, prepared to erect scaffolding and to install the doors and power mechanisms. A Union job steward noted Kinnear's arrival and promptly voiced to Walsh's superintendent his suspicion that Kinnear intended to install the power mechanisms and, with respect to one of the doors, to erect scaffolding over 14 feet high two tasks allegedly reserved by the Union agreements to carpenters. ⁶ On five different occasions between September 20 and November 8, representatives of Walsh, Kinnear, the Carpenters' International and Local 644 met in various groups to discuss the assignment of this disputed work, and at almost every turn Walsh's superintendent assured the Union representatives that the tasks could be performed by carpenters, that "there would be no problem." ⁷

A sixth meeting was arranged for the afternoon of November 9, but that meeting dissolved when the business agent for the Ironworkers, who represented Kinnear's employees, made an unscheduled appearance and issued an intractable demand that Kinnear be allowed to perform all tasks associated with installation of the steel doors. Within a half an hour all members of Local 644, those who worked for Walsh and those employed by the other general contractors on the project, walked off the job site. That evening the business agent for Local 644 sent Walsh a telegram demanding arbitration of the no-subcontracting provision of the contract which obtained between those two parties. By the time Walsh received the message the following day to which he responded that the "dispute had been referred to the Joint Board" Local 644 had set up a picket line under placards bearing the legend "Walsh . . . Only," and thus ensued the two-week strike which was the basis of the Board's section 8(b)(4)(ii)(B) ruling. Despite the "Walsh . . . Only" placard, all the other general contractors were struck in addition to Walsh.

The strike was both orderly and successful. Picketing took place at " the entry point for all the construction employees," and though operating employees of Commonwealth Edison gained access to the site through a separate gate, "none of the carpenters employed by Walsh or the other contractors reported for work, and many employees of other crafts also refused to cross the picket line for varying periods of time." ⁸ Striking employees did not attempt to solicit support for their effort at the picketed gate. ⁹

The strike concluded on November 24, and the International Unions of the Carpenters and the Ironworkers moved to settle their conflicting jurisdictional claims. They specified in a joint letter dated December 3 that scaffolding over 14 feet should be assigned to carpenters, but no clear resolution emerged from discussion concerning installation of the power mechanisms. The Carpenters' International representative contended that the Ironworkers' International had conceded the installation task to carpenters, but Walsh harbored doubts about this concession, insisting it could not change Kinnear's work assignments without Kinnear's permission. Apparently to solve this impasse, Kinnear ultimately consented to the assignment of Walsh carpenters to the power mechanism installation. ¹⁰

Acting on charges filed by Walsh, by the three other general contractors on the project, and by Lord Electric Company (electrical subcontractor for Babcock & Wilcox), the Board's General Counsel issued a complaint charging Local 644 with violations of sections 8(b)(4)(i) and (ii)(B) because of the Union's picketing and work stoppage. Following a hearing, the ALJ filed a 16 page decision which included Findings of Fact, Contentions of the Parties, Concluding Findings, Conclusions of Law, and an Order. These point out, inter alia, that the Union contended its strike had "no secondary objective" but rather was part of an attempt to preserve its traditional or "fairly claimable" work and hence had a valid primary motivation; and that the charging parties contended that the Union's work stoppage and picketing violated sections 8(b)(4)(i) and (ii)(B) because, even if preservation of carpenters' traditional work was one objective of the work stoppage, another object was enforcement of the contractual restrictions against subcontracting by illegal secondary methods.

In his Concluding Findings, the ALJ stated the criterion by which he would resolve these conflicting claims as follows:

The rule or principle to be applied in determining whether a provision in an agreement between a contractor and a union has a primary objective outside the scope of Section 8(e), or a secondary objective within the scope of that Section, has been variously phrased, but depends essentially on whether the "Union's objective was preservation of work for (unit) employees, or whether the agreements . . . were tactically calculated to satisfy union objectives elsewhere . . . . The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer vis-a-vis his own employees."⁵

5. National Woodwork Manufacturing Association v. N. L. R. B., 386 U.S. 612, 644-645 (87 S.Ct. 1250, 18 L.Ed.2d 357). See also, Orange Belt District Council of Painters No. 48 v. N. L. R. B. (117 U.S.App.D.C. 233), 328 F.2d 534, 538 (C.A.D.C.).

If an object of the provision is to aid union members generally rather than members of the unit, the object is secondary and unlawful.⁶

6. Meat and Highway Drivers, Local 710, Teamsters v. N. L. R. B. (118 U.S.App.D.C. 287), 335 F.2d 709, 716 (C.A.D.C.).

(Supp.App.14). He then analyzed the application of National Woodwork, supra, to the instant case, distinguished some of its facts, and because the Union representatives had constantly referred to such provisions as indicating the objectives of their demands he considered the subcontracting provisions of the agreement between...