National Labor Rel. Bd. v. GW Thomas Drayage & Rig. Co.

• Decision Date: 27 August 1953
• Docket Number: No. 13622.,13622.
• Citation: 206 F.2d 857
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: NATIONAL LABOR RELATIONS BOARD v. G. W. THOMAS DRAYAGE & RIGGING CO., Inc. et al.

206 F.2d 857 (1953)

NATIONAL LABOR RELATIONS BOARD v. G. W. THOMAS DRAYAGE & RIGGING CO., Inc. et al.

No. 13622.

United States Court of Appeals Ninth Circuit.

August 27, 1953.

George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Dominick L. Manoli, Atty., National Labor Relations Board, Washington, D. C., Dean E. Denlinger, Atty., National Labor Relations Board, Dayton, Ohio, and Louis Penfield, Atty., National Labor Relations Board, San Francisco, Cal., for petitioner.

Newell J. Hooey, Todd & Todd, Henry C. Todd, San Francisco, Cal., for respondents.

Before DENMAN, Chief Judge, and HEALY and ORR, Circuit Judges.

DENMAN, Chief Judge.

This is a petition to enforce an order of the National Labor Relations Board, hereafter the Board, pursuant to Section 10(e) of the Labor Management Relations Act, 29 U.S.C.A. § 160(e), hereafter the Act.

The questions presented by this petition are: (1) whether the facts as proven substantiate the charge; (2) whether rules of evidence were violated by the admission of hearsay evidence; (3) whether there was proof of the allegations of the complaint; and (4) whether the picketing involved was a constitutionally protected activity.

The International Association of Machinists, hereafter the Machinists, filed charges with the Board against the Millwrights Local Union No. 102, United Brotherhood of Carpenters and Joiners of America, hereafter Millwrights, and G. W. Thomas Drayage & Rigging Co., Inc., hereafter the Company. The Millwrights were charged with having caused or attempted to cause the Company to discriminate against one J. L. Myers, a member of the Machinists, in violation of Section 8 (a)(3) of the Act, thereby violating Section 8(b)(1) and (2) of the Act. The Company was charged with discriminating against Myers in violation of Section 8(a) (1) and (3) of the Act. A consolidated complaint was duly issued and hearings held thereon at which it was determined that the respondents had committed the acts charged. The Company and the Millwrights were ordered jointly and severally to make Myers whole for the pay thus lost. The Company has not resisted the enforcement.

In 1950 the Company was engaged in the installation of heavy machinery at the Bevatron project of the University of California at Berkeley in connection with some work that the University was doing for the Atomic Energy Commission. In July of that year, Myers, a member of the Machinists, was hired by the Company to work on the project. About the same time, employees of another employer, members of the Millwrights, were working at the project. In mid-August, Curry, the business agent of the Millwrights, approached Myers and asked him if he belonged to the Machinists. On receiving an affirmative answer, Curry said that that was all he wished to know. Curry then spoke to Post, the Company's foreman on the job, objecting to the use of a Machinist and saying that the work should be done by Millwrights. Later, Curry, accompanied by another union official, called on Alton Wilson, a University engineer, and made the same objections. Both Post and Wilson informed Curry that they could do nothing about the matter. Curry told Wilson that if "something were not done soon to replace Myers with a Millwright they would take action to achieve that object even if it involved picketing the project."

On August 29, 1950, foreman Post removed Myers from the job and Myers was told by Post that "maybe" they could get this thing settled with the Millwrights. Myers was not employed by the Company from that time until September 18, at which time he reported for work at the Bevatron project. During the interval there was work which required one with Myers' abilities and the University was pressing to have this work done.

The re-employment of Myers was temporary and beset by difficulties, including a visit by Curry and other union officials to the project where they spoke to Post about Myers being on the job. Insofar as the Bevatron project was concerned, Myers' employment ceased on September 26, 1950, when a picket line was set up at the gate to the project. This picket line was composed at least in part of members of the Millwrights, including Curry. Both Post and Wilson heard Curry state that in order to have the picket line removed, it would be necessary to replace the Machinists in the employ of the Company with Millwrights. Myers was the only Machinist in the employ of the Company. Myers was then transferred to another job of the Company and was subsequently released when that job ended on October 24, 1950. He never was permitted to return to the Bevatron project, although there was work for him there and although the Company was willing to have him do the work if the Millwrights would agree. A member of the Millwrights was subsequently hired to do this work, and the Company's job at the Bevatron project was completed on January 16, 1951.

(A) The Charge:

The Millwrights complain that the facts proven do not substantiate the charge made by the Machinists. The gravamen of that charge is as follows:

"On or about August 29, 1950, it the Millwrights, by its officers, agents or employees, caused or attempted to cause the G. W. Thomas Drayage & Rigging Co., Inc., to discriminate against J. L. Meyers, in violation of Section 8(a)(3) of the Act. * * *

"By the above acts, and by other acts, the labor organization named above has violated Section 8(b)(2) and 8(b)(1) of the Act." (Emphasis supplied.)

It contends that because the picketing did not occur until September 26, some twenty-eight days after the date contained in the charge, and because the ultimate discharge of Myers did not occur until October 24, 1950, the charge has not been proven. However, the evidence shows that on August 29, 1950, Myers was removed from the job due to pressure brought on the employer by the Millwrights because Myers was not a member of that union. This, in and of itself, is sufficient to substantiate the charge. Act, § 8(b)(2). See N.L.R.B. v. Swinerton, 9 Cir., 202 F.2d 511; N.L.R.B. v. Cantrall, 9 Cir., 201 F.2d 853.

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