Lummus Company v. NLRB

• Decision Date: 11 June 1964
• Docket Number: No. 17943,17981.,17943
• Citation: 339 F.2d 728
• Parties: The LUMMUS COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 80, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPE FITTING INDUSTRY OF the UNITED STATES AND CANADA, AFL-CIO, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

339 F.2d 728 (1964)

The LUMMUS COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 80, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPE FITTING INDUSTRY OF the UNITED STATES AND CANADA, AFL-CIO, Respondent.

Nos. 17943, 17981.

United States Court of Appeals District of Columbia Circuit.

Argued December 13, 1963.

Decided June 11, 1964.

COPYRIGHT MATERIAL OMITTED

Mr. John J. Donovan, with whom Miss Betty Jane Southard, Washington, D. C., was on the brief, for petitioner in No. 17943. Mr. Roger H. Muzzall, Washington, D. C., also entered an appearance for petitioner in No. 17943.

Mr. Hans J. Lehmann, Attorney, National Labor Relations Board, with whom Mr. Arnold Ordman, General Counsel, Mr. Dominick L. Manoli, Associate General Counsel, Mr. Marcel Mallet-Prevost, Asst. General Counsel, and Mr. Allison W. Brown, Jr., Attorney, National Labor Relations Board, were on the brief, for respondent in No. 17943 and petitioner in No. 17981.

Mr. Patrick C. O'Donoghue, Washington, D. C., with whom Mr. Martin F. O'Donoghue, Washington, D. C., was on the brief, for respondent in No. 17981.

Mr. Quentin O. Young, Washington, D. C., filed a brief on behalf of National Constructors Association and The Painting and Decorating Contractors of America, Inc., as amici curiÊ.

Before BAZELON, Chief Judge, PRETTYMAN, Senior Circuit Judge, and WASHINGTON, Circuit Judge.

PRETTYMAN, Senior Circuit Judge:

The Lummus Company petitions for court review of a decision and order of the National Labor Relations Board, which held the Company to have violated Section 8(a) (3) and (1) of the National Labor Relations Act.¹ The Board in the same decision held respondent Local 80 to have violated Sections 8(b) (2) and 8(b) (1) (A).² The Board has petitioned for enforcement of its order against the Union and cross-petitioned for enforcement against the Company. The several petitions were consolidated here.

The controversy revolves around a hiring hall agreement, two brothers named Kivlin, and a business agent of our respondent Union, Local 80. This Union has a collective bargaining agreement with the Delaware Mechanical Contractors Association, which provides for an exclusive hiring hall for a designated territory. The Lummus Company is not a member of this Association, nor is it a signatory to the contract; but during the relevant period it considered itself bound by the hiring provisions by virtue of an agreement with the International with which Local 80 is affiliated.

James and John Kivlin are welders and members of Local 420, a sister Local to respondent Local 80. Three dates material to the controversy are February 22, March 14 or 15, and May 22, 1961. Versions of all the material incidents differ, and the examiner was compelled to resolve acute questions of credibility. He did so with long and careful discussions of the evidence. His findings are amply supported, and we follow them in our recitation of the facts. On or about February 22, 1961, James Kivlin was referred by Local 80 to a jobsite of the Bechtel Corporation at Newcastle, Delaware. This company was in no way related to Lummus. Kivlin was there given a welding test by one Baffone, an employee of Bechtel, who happened to be a member of Local 80. Kivlin did not pass the test. Embittered over this failure, and feeling that Baffone had not been fair to him, Kivlin went to the Bechtel office to lodge a complaint but was unsuccessful. He then returned to the Local 80 hall, where he engaged in a "heated" discussion with Charles Kennedy, the business agent for Local 80. Some weeks later, on March 15th,³ the two Kivlins went back to the Local 80 hall seeking referral. Upon arrival they reported to Kennedy. James Kivlin told Kennedy that they had been sent by their own business agent, to which Kennedy remarked, "I remember you from before. You had a fight with one of my executive board members. You gave him a hard time." Although James Kivlin denied such an incident Kennedy told him, "You ain't working here." Kennedy then inquired as to the identity of John Kivlin and, upon learning that he was a brother to James, stated, "You ain't working here either."⁴ James then asked about the hiring list and was told, "I told you, you weren't working here." A bitter argument ensued between James Kivlin and Kennedy, and Kennedy ordered the Kivlins to leave his office.

John Kivlin subsequently obtained work through another local. He did not thereafter have any contact with Local 80. So far as the record shows, he at no time had contact with Lummus. It will be noted that the Kivlins had no dealing or contact whatever with Lummus on February 22nd or March 14th-15th.

Some two months later, on or about May 22nd, James Kivlin returned to the hiring hall for the express purpose of making amends with Kennedy. The latter met him outside the hall and remarked, "There is no use you hanging around here, you are going to get hurt." With that Kivlin left and did not thereafter return to the hall.

Kivlin then went, that same day, to the Lummus Company's jobsite at Claymont, Delaware, and was there approached by Local 80's job steward, who asked for his referral slip. Kivlin said he did not have one because Kennedy would not refer him. The job steward told him to leave the site. He also told Lummus's timekeeper not to give Kivlin an application. Kivlin was however allowed to fill out an application, but it was then set aside. Kivlin was sent to the manager of the Company's employment office, one Gibson. Gibson explained that he was required to obtain all his men from Local 80, and Kivlin asked, "What if you can't get a ticket out of Local 80?". Gibson started to explain when the steward burst in and shouted that Kivlin was not going to work. Gibson then told Kivlin that the required number of welders had already been hired and that if Kivlin would obtain a referral from Local 80 he would be considered for future employment.

In respect to the Company (Lummus) the trial examiner concluded that the complaint should be dismissed, noting that John Kivlin had never applied for work with Lummus and that at the time Local 80 refused to refer James Kivlin, i. e., on March 14th-15th, Lummus was not using the hiring hall. He further found that on May 22nd Lummus had in fact hired the required number of welders and consequently had not violated the Act by turning James Kivlin away. The Board, one member dissenting, reversed the examiner in respect to the Company, holding that the Local was acting as agent for Lummus by virtue of the agreement.

In respect to the liability of Local 80 the Board said:

"We find, in agreement with the Trial Examiner, that Respondent Local 80, by refusing the Kivlins the use of its exclusive hiring hall, thus effectively barring them from employment within its jurisdictional area because of the claimed abusive conduct of James Kivlin towards an unnamed member of the executive board, caused Respondent Lummus to deny them employment in violation of Section 8(a) (3), thereby violating Section 8(b) (2) and (1) (A) of the Act."

Three issues are presented for our determination.

I. The collective bargaining agreement contained a clause establishing a joint hiring committee composed of equal numbers of union and contractor representatives. The committee was empowered to "hear and determine any and all disputes or grievances arising out of the operation of the referral system". In case of a deadlock an impartial umpire was to be designated by mutual agreement of the parties. The decision of the committee or the umpire was made "final, binding and conclusive on all parties, including applicants." Lummus and Local 80 contend that the Board should have dismissed the complaint and left the Kivlins to this contractual remedy. The Company and the Local agree that Section 10(a)⁵ of the Act places such a decision within the discretion of the Board but argue that this discretion was abused. We disagree.

The Kivlins were not parties to the agreement, and the Board found they had no knowledge of the appeal procedure. Furthermore a majority of the Board were of the opinion that this procedure did not provide access to such an impartial tribunal as would justify deference to it. In such circumstances we cannot say that the Board abused its discretion.

II. Local 80 argues that the Board erred in finding it in violation of Section 8(b) (2) and (1) (A). It says that a union does not violate the section unless its disparate treatment of an employee is brought about by some union activity of the employee or his union membership, and that the evidence shows Kennedy's acts toward the Kivlins to have been the result of a personal disagreement. Since it seems to us that the refusal to refer the Kivlins was based upon an incident keyed to union membership, we need not embroil ourselves in the controversy over the extent of the statutory proscription, i. e., whether a discrimination based entirely upon causes not related to union membership or activity is violative of the statute. See, e. g., N. L. R. B. v. Miranda Fuel Co., Inc., 326 F.2d 172 (2d Cir. 1963).

Section 8(b) (2) makes it an unfair labor practice for a union or its agents to cause or attempt to cause an employer, by discrimination in regard to hire, tenure, or any term or condition of employment, to encourage or discourage membership in any labor organization. "The policy of the Act is to insulate employees' jobs from their organizational rights."⁶ And the Supreme Court has recently pointed out that the Act "aims at every practice, act, source or institution which in fact is used to encourage and discourage union membership by discrimination in regard to hire or tenure, term or condition of employment."⁷ And in the Radio Officers case, the Court said the phrase "union membership" includes membership in good standing.⁸

Of course not every union attempt to...