National Labor Rel. Bd. v. Denver Bldg. & Const. Tr. Coun.

• Decision Date: 04 January 1952
• Docket Number: No. 4171.,4171.
• Citation: 193 F.2d 421
• Parties: NATIONAL LABOR RELATIONS BOARD v. DENVER BLDG. & CONST. TRADES COUNCIL et al.
• Court: U.S. Court of Appeals — Tenth Circuit

193 F.2d 421 (1952)

NATIONAL LABOR RELATIONS BOARD v. DENVER BLDG. & CONST. TRADES COUNCIL et al.

No. 4171.

United States Court of Appeals Tenth Circuit.

January 4, 1952.

Bernard Dunau, Washington, D.C. (George J. Bott, David P. Findling, A. Norman Somers, Fannie M. Boyls, and Julius G. Serot, all of Washington, D.C., on the brief), for petitioner.

Philip Hornbein, Jr., Denver, Colo. (Philip Hornbein, Denver, Colo., on the brief), for respondents.

Before BRATTON, HUXMAN and PICKETT, Circuit Judges.

HUXMAN, Circuit Judge.

This is a conventional proceeding in which the Board seeks enforcement of its order against Denver Building and Construction Trades Council, herein called the "Council" and International Brotherhood of Electrical Workers, A.F.L., Local 68, herein called the "Electricians," ordering them to cease violations of Section 8(b) (4) (A) of the National Labor Relations Act, 29 U.S.C.A. § 151¹ et seq., and to post appropriate notices.

The facts upon which the decision turns are substantially these: The Council is a labor organization, composed of representatives of various local unions, whose members are engaged in building and construction work, in Denver and its vicinity. The Electricians, an affiliate of the American Federation of Labor, is a labor organization, composed of craftsmen whose work falls within its craft jurisdiction. It is a component part of the Council.

Grauman Company is a corporation engaged in the manufacture, sale and sometimes partial installation of soda fountains and fixtures for stores and restaurants. Quigley, a restaurateur, entered into a lease contract with W.D. Moore, Manager of a suburban drug store in Aurora, a suburb of Denver, Colorado, under which Quigley was to operate as an independent concessionaire the restaurant, bakery, soda fountain and ice cream departments in the drug store. Quigley was to supply and install the equipment necessary to operate his concession. He contracted with Grauman for the purchase and partial installation of the soda fountain and other equipment to be installed in his concession. Under the contract Grauman was to sell and affix the equipment to Quigley's premises, but Quigley was to make his arrangements for the installation of the plumbing and electrical installations. Accordingly, he entered into contracts with Acme to do the electrical work and with McCarty to do the plumbing work. Grauman operated a non-union shop. Acme and McCarty were unionized. Because of his non-union operations, Grauman had been placed on the Council's unfair list.

Grauman delivered the fixtures and equipment to the Quigley job at the drug store on or about July 18, 1948. Soon after delivery, the Acme and McCarty employees began to make the plumbing and electrical installations necessary to put the fountain in operation. On July 20, 1948, only a few days after the equipment had been delivered and work commenced thereon, Clifford Goold, the Council's secretary-treasurer and business representative, appeared at the store. Two McCarty plumbers, William Fleming and his helper, John Jacks, were already at work, installing the Grauman fountain for Quigley. Both were members of the Plumbers Union. Goold met Moore, the store manager, and remarked that Moore had a nice store and that it was a shame that they were going to have to put a picket on his place. Moore asked why and Goold replied it was because Grauman was unfair. While Moore was called away to the telephone, Goold walked over to the two plumbers who were working on the fountain. He asked Fleming whether he knew that Grauman was on the Council's unfair list. Fleming was surprised at this statement, but pointed out that there were no Grauman employees present and asked whether that made any difference. Goold replied, "Admittedly, nothing makes any difference." Moore, returning from his telephone call, found Goold talking with the plumbers about whether the job was "unfair or not fair" and heard him tell the plumbers that regardless the job was unfair, because Grauman was unfair and it was a Grauman fountain. The following morning Goold returned to the store, this time accompanied by J.R. Fisher, assistant business agent of the Electricians. Again they asked Quigley whether he knew that Grauman was a non-union shop. Quigley replied that he had not known it and asked, "What do you want me to do about it?" Goold or Fisher told him they wanted him to go down to Grauman and try to get them organized, get them to join the union. Quigley replied that "It was not my job to do that."

Phil Oaks and his helper, the Acme electricians assigned to the Quigley job, had already begun making the necessary electrical connections to the fountain. Both Oaks and his helper were members of the Electricians. When Quigley refused to comply with respondents' demand that he help unionize Grauman, Goold and Fisher immediately walked over to Oaks. They asked him how long it would take to complete the Quigley installation. He replied that he expected to finish the work on the fountain in about forty minutes, whereupon Fisher stated: "Well, I can't order you off the job but you know what you better do about it."

The minutes of the meeting held by the Council the following week, over which Goold presided, showed that prior to Goold's visit to the store, he had been instructed to place a picket line at the store, because of the Council's dispute with Grauman. According to the minutes, Goold reported to the meeting that "After contacting Mr. Moore, manager of the store, Goold felt that we would be defeating our objective by placing a picket on this job." The day after Goold and Fisher visited the store, Grauman filed with the Board the unfair labor practice charges which, as subsequently amended, resulted in these present proceedings.

The Board found that the union officials' objective was to further the Council's dispute with Grauman by bringing pressure upon Quigley. While the Board found this was not illegal in itself, it concluded that it did reveal the motives of respondents' representatives in speaking to Oaks and Fleming....