Morrison-Knudsen Company v. NLRB

• Citation: 276 F.2d 63
• Decision Date: 19 February 1960
• Docket Number: No. 16383,16401.,16383
• Parties: MORRISON-KNUDSEN COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS UNION OF AMERICA, LOCAL 341, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

276 F.2d 63 (1960)

MORRISON-KNUDSEN COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS UNION OF AMERICA, LOCAL 341, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 16383, 16401.

United States Court of Appeals Ninth Circuit.

February 19, 1960.

Allen, DeGarmo & Leedy, Gerald DeGarmo, Seth W. Morrison, Seattle, Wash., for petitioners Morrison-Knudsen Co.

Hartlieb & Groh, Anchorage, Alaska, Vincent F. Morreale, Washington, D. C., Robert J. Connerton, Joseph M. Stone, Washington, D. C., for petitioners Int. Hod Carriers.

Stuart Rothman, General Counsel, Thomas J. McDermott, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Rosanna A. Blake, Nancy M. Sherman, Attys., N. L. R. B., Washington, D. C., for respondent.

Before CHAMBERS, Chief Judge, and POPE and KOELSCH, Circuit Judges.

POPE, Circuit Judge.

Following separate charges filed by one Denton R. Moore against both the petitioners to the effect that the Morrison-Knudsen Company had refused to hire Moore and certain other persons because they were not members of Local 341 and that the Union had caused the company to refuse to hire such persons because they were not members of the Union, the General Counsel filed a consolidated complaint against both the Company as employer and the named Local 341.

The complaint alleged that the two respondents, Morrison-Knudsen, as employer, and Local 341, as representative of certain employees, had an unwritten agreement, arrangement or practice which governed them, whereby applicants for jobs as construction laborers were cleared by Local 341 as a condition of hire; that this arrangement "was operative at times when the officials and agents of respondent Local 341 were obligated to procure employment for members of said labor organization in preference to non-members"; that the employer used the facilities and dispatching personnel of Local 341 to determine the qualifications of the applicants seeking hire as construction laborers; that on or about June 12, 1956, membership in Local 341 was required as a condition of hire and dispatch by Morrison-Knudsen of one Morris Abolins and seven other named persons; that Morrison-Knudsen refused to treat as eligible for employment at its Big Mountain construction site any local applicants for employment until Local 341 had given preference to its members; that by the agreement, arrangement or practice described, the named respondent Morrison-Knudsen had violated secs. 8(a) (3) and 8(a) (1) of the National Labor Relations Act, as amended, and that the Union had violated secs. 8(b) (2) and 8(b) (1).¹

After hearing upon this complaint and the answers of the employer and Union respondents, the trial examiner filed his intermediate report and recommended order. He there found with respect to Morris Abolins and four others named with him in the complaint that Morrison-Knudsen had withheld job assignments to them until they and each of them had joined Local 341; that by so doing Morrison-Knudsen had interfered with, restrained and coerced employees and prospective employees, in violation of sec. 8(a) (1); that by encouraging membership in Local 341, through refusal of employment to Abolins and the other four until they joined Local 341, Morrison-Knudsen had engaged in an unfair labor practice within the meaning of sec. 8(a) (3) of the Act; that the record did not sustain the allegations of the complaint relating to Denton R. Moore and the 25 so-called "local applicants"; and that certain other allegations of the complaint, not here material, were likewise not sustained.

During the course of the hearing, and at the conclusion of General Counsel's evidence, the trial examiner sustained a motion to dismiss the proceedings as against the Union. Accordingly the recommendations in his intermediate report were to the effect that appropriate cease and desist orders be issued against Morrison-Knudsen only, and that it be required to take affirmative action through the posting of notices and the notification of the Regional Director that it would comply with the recommendations suggested in the intermediate report.

The General Counsel and Morrison-Knudsen each filed exceptions to the trial examiner's report. Upon consideration of the report and the exceptions, the Board, referring to certain items of testimony in the General Counsel's exceptions, found that such evidence "was sufficient to establish a prima facie case of violation" by the respondent Union of the sections of the Act referred to. The Board found that the trial examiner had erred in dismissing the complaint as to the Union and set aside that ruling. It held that in view of the fact that the Union had not had an opportunity to present its defense, the case should be remanded to the trial examiner for further proceedings consistent with the decision and order of the Board, including such additional hearing as might be necessary, and the preparation and issuance of a supplemental intermediate order "with respect to unfair labor practices by the Union, alleged in the complaint."²

The trial examiner thereupon gave notice to the employer and the Union that the hearing was reopened and would be resumed for taking of testimony at a stated time and place. The Union thereupon notified the trial examiner that it rested, and requested that the supplemental report be based on the evidence presently in the record. The trial examiner then cancelled the notice of further hearing and proceeded to make and file a supplemental intermediate report and recommended order.

The supplemental report differed from the first one primarily in that it detailed some testimony by one Raoul Wargny, whose evidence had not even been mentioned in the original report. It was this testimony of Wargny which was alluded to by the Board when it found that it was sufficient evidence to constitute a prima facie case of violation by the Union.

In making the original report, the trial examiner had referred to and relied upon the testimony of Morris Abolins and the four other persons who were associated with him relating to their employment. These five men were members of the University of Washington football team. They had been promised vacation employment in Alaska during the summer of 1956. In his original report the examiner found that these five men were required to join the Union before they began their work and upon the basis of that finding, and of that finding alone, he concluded there had been an unfair labor practice on the part of the company.

It is clear that when he made those original findings the examiner did not credit the testimony of Wargny. He did not even mention it, and he based no findings upon the circumstances which Wargny related. However, notwithstanding the fact that the examiner thought this testimony unimportant and that he took no stock in it, yet in the preparation of his supplemental report he obviously considered that he had been ordered to credit this testimony and proceeded to recite that Wargny "credibly testified" to certain things. He also referred to the testimony of Abolins and that of the other students as he had done in his first preliminary report.

Upon the basis of his crediting of the Wargny testimony, the examiner in his supplemental report enlarged his findings by reciting that the employer and the Union were parties to an unlawful arrangement under which all applicants for work were required to become members of Local 341; and that Local 341 had caused the employer to discriminate against the employees in violation of sec. 8(a) (3). (This finding, it will be noted, differed from that of his first report in that it found discrimination as to employees generally. The earlier report found discrimination only as respects Abolins and the four other students.) He made recommendations for cease and desist orders similar to those previously recommended by him except that he suggested that these latter orders be directed to the Union as well as the employer, and called for similar posting of notices. However, he added a further recommendation as follows: "It will be recommended that M-K and Local 341, jointly and severally, be required to reimburse to Morris A. Abolins, Ronald S. Crowe, Joel I. Garnes, William A. Wyman, and Robert Bleeck, the five University of Washington athletes referred to in the record, any and all initiation fees and dues paid to Local 341 in order to obtain employment with M-K."

All parties excepted to this report. The General Counsel excepted to it for its "failure to file an order that Respondents, jointly and severally, be required to reimburse all other employees of respondent employer for all fees and dues paid the Union within a period from six months before the filing of the charge to completion of the construction work."

In its final and so-called "Supplemental Decision and Order" the Board sustained this exception, but in other respects it approved the findings of the examiner's supplemental report. In sustaining the General Counsel's exception, just mentioned, the Board stated: "Therefore, as part of the remedy we shall order the Respondents, jointly and severally, to refund to the employees of the Company hired at Anchorage, Alaska, for work under the Western Electric contract mentioned above, all initiation fees, dues, and other moneys paid by them to the Union as the price of their employment."

Morrison-Knudsen did not except to the finding in the original report of the examiner that it had violated sec. 8(a) (3) and (1) of the Act by conditioning the employment of Abolins and the other University athletes upon their joining the Union. Hence the Board properly adopted it. But to the finding of the supplemental report that there was an arrangement that other employees, that is to say, applicants for jobs generally, were required to apply for union membership as...