National Labor Rel. Bd. v. INTERNATIONAL UNION, ETC.
| Decision Date | 03 November 1954 |
| Docket Number | No. 15064.,15064. |
| Citation | 216 F.2d 161 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, HOISTING AND PORTABLE LOCAL NO. 101 OF GREATER KANSAS CITY AND VICINITY, A. F. OF L., Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Margaret M. Farmer, Atty., National Labor Relations Board, Washington, D. C. (George J. Bott, Gen. Counsel, David P. Findling, Asst. Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Fannie M. Boyls, Atty., National Labor Relations Board, Washington, D. C., were with her on the brief), for petitioner.
John J. Manning, Kansas City, Mo., for respondent.
Before GARDNER, Chief Judge, and WOODROUGH and VOGEL, Circuit Judges.
This is a petition by the National Labor Relations Board to enforce a cease and desist order entered by it against Sub Grade Engineering Company and International Union of Operating Engineers, Hoisting and Portable Local No. 101 of Greater Kansas City, A. F. of L., based on findings of violations of certain provisions of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq.
The Sub Grade Engineering Company is a contracting and engineering corporation engaged in building construction, "unwatering", and engineering. In May, 1949, it was employed as a subcontractor on the Hawthorne project which involved the erection of a hydroelectric plant near Kansas City, Missouri. Its contract provided that it employ "the proper labor." Labor in this area was almost entirely unionized and while it was not bound by contract to employ only union labor, it nevertheless called in the representative of the union, inquired as to the union's rules and wage scales and indicated its intention, without the formality of negotiating a contract, of hiring through the union and of conforming to the union's rules.
In 1934, Local 101 chartered two subordinate locals of which Local 101-A admitted to membership apprentices and Local 101-B formed for organizational purposes, admitted to membership operators of caterpillar tractors, bulldozers, and other types of earth-moving machinery. Both subordinate locals were managed by the officers of Local 101, who presided over their meetings. Members of these subordinate locals were not admitted to meetings of Local 101 and had no vote either in the election of officers or in any decision to strike. Shortly after Locals 101-A and 101-B were chartered, Local 101 passed a trade rule which provided that in a permanent layoff the members of Locals 101-A and 101-B should be laid off before members of Local 101, regardless of seniority on the job.
Soon after operations began in June, 1949, Sub Grade Engineering Company's general manager requested that the union send him a crew of pumpers. In response to this request the union sent a crew who were members of Local 101. In response to a later request he was sent a crew of Local 101-B men consisting of three men named respectively Collins, Stewart and Swant. Subsequent to the hiring of the Local 101-B men, on request of the company the union sent a crew of Local 101 men.
When it became apparent that certain operations of the company were about completed, the union steward, sensing certain layoffs of laborers would necessarily follow, advised Sub Grade's general manager that according to the union rules the crew consisting of Collins, Stewart and Swant were to be laid off first because of the union seniority rule. It was the established usage and practice of the company to observe the rule of seniority in laying off its employees and the general manager then took the matter up with the union representative advising him of its practice and protesting that Collins, Stewart and Swant had three months' seniority over the last crew hired. The union representative told him that Collins, Stewart and Swant were members of Local 101-B and not of Local 101, and that according to the union rule they must be laid off before any members of Local 101, despite their seniority on the job. The general manager then asked the union's representative if in the circumstances the rule could not be waived so that these three men need not be laid off in violation of their seniority rights as recognized by the company. The union's representative reported that the rule had been adopted by the membership and that he had no authority to waive it. Because of the insistent demand of the union the company's general manager laid off these three men in disregard of its custom and usage. These men were all experienced men, skilled in the work which they were performing for the company and their work had been entirely satisfactory. Prior to their layoff both Collins and Stewart had sought to be transferred from Local 101-B to Local 101 but they received no satisfactory answer to their applications and they had not been acted upon at the time of their layoff. No question has been raised on the record as to the elegibility of either Collins or Stewart to transfer to Local 101. Collins had been a member of Local 101-B for approximately ten years, Stewart had been a member for over eight years, and they had both entered Local 101-B as experienced operators and could handle a variety of machines.
Subsequent to the time Collins and Stewart were laid off they learned that the general manager of the company had desired to observe its seniority rule and lay off other workers who had been employed subsequent to the time they had been employed but that the union had refused to waive its rule giving absolute priority in job retention to members of Local 101. They then filed the charges which initiated and formed the basis for the proceeding culminating in the order to cease and desist, the enforcement of which is now sought by the Board. Based on these charges the General Counsel issued his complaint alleging that the company had violated Section 8(a) (3) of the act by discriminating in regard to the hire or tenure or term of employment of its employees Collins and Stewart, thereby encouraging membership in the respondent union and that the union had violated Section 8(b) (2) of the act by attempting to cause and by causing the company to...
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