LOCAL 98, UNITED ASS'N OF JOURNEYMEN, ETC. v. NLRB

• Decision Date: 06 June 1974
• Docket Number: No. 71-1413 and 72-1044.,71-1413 and 72-1044.
• Citation: 497 F.2d 60
• Parties: LOCAL 98, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPE FITTING INDUSTRY OF the UNITED STATES AND CANADA, AFL-CIO and Larry Delehant, Respondents-Appellants, v. NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

497 F.2d 60 (1974)

LOCAL 98, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPE FITTING INDUSTRY OF the UNITED STATES AND CANADA, AFL-CIO and Larry Delehant, Respondents-Appellants, v. NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee.

Nos. 71-1413 and 72-1044.

United States Court of Appeals, Sixth Circuit.

Argued April 4, 1974.

Decided June 6, 1974.

Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Paul Elkind, Chief, Contempt Litigation, Peter Ames Eveleth, Associate Chief, Contempt Litigation, Charles Donnelly, Atty., National Labor Relations Board, Washington, D. C., on brief, for petitioner-appellee.

Boaz Siegel, Detroit, Mich., on brief, for respondents-appellants.

Before PHILLIPS, Chief Judge, and PECK and MILLER, Circuit Judges.

PHILLIPS, Chief Judge.

This is a civil contempt proceeding filed by the National Labor Relations Board against Local 98, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (the Union) and its agent, Business Representative Larry Delehant.

On May 27, 1971, and January 25, 1972, this court entered consent judgments enforcing unreported Board orders against the Union, in Board cases Nos. 7-CC-605(4) and 7-CC-646, respectively. The orders of the Board which were enforced by the consent judgments of this court each require the Union, its officers, agents and representatives, to cease and desist from:

(a) Engaging in, or inducing or encouraging any individual employed by . . . any . . . person engaged in commerce or in an industry affecting commerce, to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport or otherwise handle or work on any goods, articles, materials or commodities or to perform any service, or

(b) threatening, coercing or restraining . . . any . . . person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require . . . any . . . person, to cease using, selling, handling, transporting, or otherwise dealing in the products of or to cease doing business with Certified Contractors Corporation.

Thereafter the Board filed a petition in this court for adjudication in civil contempt and for other civil relief charging that the respondent Union had disobeyed and failed and refused to comply with the consent judgments of this court. This court entered a show cause order against respondents. The union filed its answer denying that it was in contempt of this court or that it had disobeyed said judgments of enforcement. This court thereupon entered an order of reference appointing Honorable Thomas P. Thornton, Senior Judge, United States District Court for the Eastern District of Michigan, as Special Master to hear evidence and report to this court as to whether respondents are in civil contempt for violating, disobeying and failing and refusing to comply with the judgments.

After hearing evidence which is preserved in a transcript of more than 400 pages, the Special Master adopted findings of fact and conclusions of law, holding that respondents are in civil contempt of the aforesaid judgments of this court, because of the Union's picketing and other acts by which respondents induced and encouraged employees to engage in strikes and work stoppages at several construction sites with the object of forcing or requiring neutral employees to cease doing business with Certified Contractors Corporation (Certified).

The findings of fact of the Special Master are summarized as follows:

Certified is a Michigan corporation engaged as a plumbing and heating contractor in and around Detroit, Michigan. Certified's journeymen and apprentice plumbers were at all material times represented under a collective-bargaining contract between Certified and Local 124 of the United Construction and Trades Union International.

A. The Red Cross Jobsite

In late April 1972,¹ Certified began plumbing work for Campbell Construction Company (Campbell) at the Detroit Red Cross Building, under the supervision of Master Plumber Joseph Grates. On May 8, approximately 25 craftsmen and general laborers employed by eight subcontractors, including Certified, were scheduled to work at the site. On that morning however, the Union picketed the Red Cross jobsite with signs protesting Certified's failure to pay Union wages and benefits. The pickets marched on sidewalks on three sides of the jobsite (the fourth side, a small alleyway, was not picketed). In the course of the picketing, the pickets patrolled in front of the main employee entrance to the jobsite. As a result, employees of all the various subcontractors engaged in performing work on the jobsite, with the exception of Certified and Guardian Electric, refused to work and left the site. The picketing continued in the same manner on May 9 and only Certified and Guardian Electric continued to work in face of the picketing.

On May 10, Certified established an entrance exclusively for use of its own employees and suppliers which was located in an alley bounding one side of the jobsite. At this location, Certified erected a sign designating the entrance as reserved for its sole use and that of its suppliers. In addition, at the main employee entrance, which was being picketed, a sign (Gate 1) was erected which forbade use of that entrance by Certified's employees and suppliers and restricted its use to employees and suppliers of neutral contractors. After the reserved gates were erected, no employee or supplier of Certified used any entrance other than Gate 2. Despite the fact that Certified was thus excluded from use of the main entrance, the Union continued to picket that gate and did not picket Certified's alley entrance. On May 10, only Certified and Guardian Electric employees worked, while on the following day, Guardian Electric ceased to work. The Union's picketing persisted until May 15, with the pickets continuing to station themselves at the main entrance. As a result of the picketing, Campbell, the general contractor, cancelled Certified's plumbing subcontract; thereafter the Union discontinued its picketing of the jobsite.

B. The Cyril Burke Jobsite

Certified was also the plumbing subcontractor on a construction project in Sterling Heights, Michigan in the Detroit area for the Cyril Burke Rental Equipment Company. In early June, Certified's employees completed installation of underground plumbing. On June 5, under the supervision of Master Plumber Harold Doubles, Certified's employees collected their tools, equipment and vehicles with the exception of a company trailer (which they padlocked) and departed from the jobsite, intending to return only after the electrical subcontractor (Starlite Electric) and other subcontractors had performed work preliminary to further plumbing installation.

On the morning of June 6, five or more Union pickets appeared at the Burke site with signs identical to those used at Red Cross and proceeded to picket the three employee entrances despite the fact that Certified was not working at the site. The picketing was at all times conducted under the direction of Business Agent Larry Delehant. Shortly after the picketing began, Starlite Electric's foreman, Kenneth Walters, arrived at the site to work on scheduled electrical installation and was confronted by Delehant. Delehant announced that the Union was picketing Certified and instructed Walters to contact his own business agent for advice about working while the site was being picketed. As a result of the picketing and Delehant's instructions to Walters, Starlite Electric did not work at the Burke site on June 6, although it was scheduled to lay floor conduit that day.

At noon on June 6, Delehant also approached a carpenter, Clifford Kniffen, who was working at Burke for C. D. Lewis Construction Company (Lewis), the general contractor at the site. Delehant asked Kniffen to call the Carpenters Union business agent, but Kniffen refused. Later, a Carpenters Union business agent, after speaking with the Union pickets at the jobsite, spoke to Kniffen and warned him that he "could be fined" for working behind the picket line. As a result of the foregoing, Kniffen refused to work at the Burke site.

The Union continued to picket the Burke site for several days after June 6, despite the fact that on June 7, Delehant learned that Certified had by telegram notified the Union that they had ceased working at the site on June 5 and would not return for several weeks. As already indicated, Certified could not work because Starlite had not completed its electrical work. On June 8, Starlite foreman Walters again attempted to work at the Burke site. However, Union pickets stated that the Union would "appreciate it" if Walters refused to work in response to the picketing.² As a result of the foregoing, he again refused to work at the site.

Later on the same day, Certified roped off the site and, with appropriately worded signs, established a gate reserved exclusively for the use of its own employees and suppliers (Gate 2). In addition, at the main employee entrance it erected a sign prohibiting use of the entrance by its own employees and reserving it for use by neutral employees and suppliers (Gate 1). Even after these entrances had been created, however, three or more Union pickets congregated at the main entrance set aside for use by neutrals. Picketing at the main entrance continued for several days after the reserved entrances had been established, although Certified was not working at the site. Further, employees of subcontractors who came to the site to work refused to do so because of the Union's picketing.

The Union resumed picketing the Burke site on Monday morning, June 12. Delehant made an inquiry of the general contractor's superintendent about the identity of the replacement for...