National Labor Rel. Bd. v. Cement Masons Local No. 555

• Decision Date: 30 June 1955
• Docket Number: No. 14238.,14238.
• Citation: 225 F.2d 168
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CEMENT MASONS LOCAL NO. 555, Operative Plasterers and Cement Masons International Association, A F L, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

225 F.2d 168 (1955)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CEMENT MASONS LOCAL NO. 555, Operative Plasterers and Cement Masons International Association, A F L, Respondents.

No. 14238.

United States Court of Appeals Ninth Circuit.

June 30, 1955.

George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Norton J. Come, Robert J. Wiener, Frederick U. Reel, Myron S. Waks, Attys., N.L.R.B., Washington, D. C., for petitioner.

Green, Richardson, Green & Griswold, Donald S. Richardson, Portland, Or., for respondent.

Before STEPHENS, POPE, and FEE, Circuit Judges.

STEPHENS, Circuit Judge.

This is a petition by the National Labor Relations Board brought under Section 10(e)¹ of the National Labor Relations Act for the enforcement of the Board's order against respondent union (hereinafter referred to as "Union", "respondent", or "Local 555").

Respondent union is the Portland, Oregon, local of the Operative Plasterers and Cement Masons International Association AFL. Much of the employment of cement workers in the Portland area is conducted under respondent's auspices. Employers needing cement masons usually, through arrangement with respondent, hire the desired workers through the union hall. The actual assignment of union members to jobs is under the control and direction of respondent's business manager. It is his duty to correlate the available supply of qualified workers with the requests of the employers. While the union does not order any man to a job, the members must have clearance from the union before they can work.

The relations between the employers, the workers, and the union are governed by respondent's "working rules" which are in effect on all jobs to which workers are dispatched. In material part these rules provide that no union member may allow a non-union cement worker to assist him in any way; that members working more than 30 miles from Portland shall receive $5.00 additional per diem, that all jobs must have a foreman who shall be a paid-up union member, that all cement masons shall be hired and cleared to the jobs by the local and none of them shall report to the job without a union clearance slip and that the foreman shall have the power to requisition and discharge cement masons and shall be held responsible for the enforcement of the working rules. Copies of these rules are printed and distributed to all members and contractors who employ members.

Anderson-Westfall Company (the employer) is a Portland contracting firm which engages in the construction of commercial buildings throughout the Pacific Northwest. Materials used by them in construction are often shipped to the job from states other than that in which the job is situated. In the spring of 1951, Anderson-Westfall was engaged in the construction of a $150,000 research building for Crown Zellerbach Corporation at Comas, Washington, and a $225,000 retail food store for Safeway Stores at Salem, Oregon.² Early in June, construction on the Salem store had reached a stage where the services of cement workers were needed. Since Salem is outside the area normally serviced by respondent, Anderson-Westfall contacted the Salem local of the International Association and requested workers. The Salem local was unable at this time to supply workers and it was suggested by the Salem local that Anderson-Westfall secure Portland workers through respondent. Anderson-Westfall accordingly requested respondent to furnish the workers for the Salem job. This respondent agreed to do, but stated that under the working rules the workers must be paid the additional five dollars per diem for travel expenses due to the distance to the job.

On June 7, respondent's business agent announced the Salem job to the members. During the morning union member Parker called the hall and, on behalf of himself and some other members, requested to be assigned to the job. Parker's request was granted, he and his companions being listed for the Salem job. At a union meeting held on the night of June 7, respondent's business agent announced that Parker and another man were suspended from the union for reasons other than the nonpayment of dues, but that they should "not be denied the privilege to work whenever they find employment." The following morning Parker and five other cement workers drove to the Salem job. Upon their arrival Anderson-Westfall, in accordance with respondent's working rules, selected member Reichel³ as foreman of the cement workers. Shortly thereafter three other cement masons arrived on the job, having been dispatched by respondent's business agent. Upon learning that Parker was on the job, the new arrivals informed foreman Reichel that they would not work with Parker. While the testimony is conflicting as to the basis of the refusal of the three men to work with Parker, the trial examiner and the Board have adopted the view that the refusal to work was founded upon Parker's suspension from the union and not upon personal reasons, as contended by respondent. This interpretation finds ample support in the record⁴ and we are unable to say that it is clearly erroneous.⁵

Reichel did not formally discharge Parker but directed him to attempt to get a clearance from the Salem local in order that he might return to the job,⁶ inasmuch as his termination left them one man short. Clearance was refused by the Salem business agent for the asserted reason that it could only be issued by the members of that local at a special meeting. Parker thereupon abandoned further efforts to gain acceptance and did no more work on the Salem job.

On the above facts, the Board found respondent had violated Section 8(b) (1) (A) and (2) of the Labor Management Relations Act of 1947,⁷ by causing Anderson-Westfall to discharge Parker by reason of his loss of union membership in violation of Section 8(a) (1) and (3)⁸ of the Act.

Respondent's contention that there is no substantial evidence that Parker was refused a working permit is well taken. The complaint contains an allegation that respondent refused to issue a work permit to Parker for the Salem job. It is not apparent from the testimony that such was the case, while conversely it does appear that Parker was in fact dispatched by the union to the Salem job and that he worked for one and one-half hours on the day he was allegedly denied a permit to work.

As to Parker, the complaint was confined to the union's actions concerning him on the Salem job alone, and on this point it was charged that the cumulative behavior of the union toward him constituted an unfair labor practice. The basic violation charged was that the respondent by its actions wrongfully interfered with Parker's employment by Anderson-Westfall in violation of section 8(b) (1) (A) and (2) of the Act. It is immaterial whether the wrongful interference took the form of preventing his employment ab initio or of affecting his tenure on the job, once he was hired. Either course would violate the Act. It appears as respondent urges, that there was no refusal to issue a work permit. But even if the Board had found such a refusal and it is in nowise clear that it did, such fact would not compel reversal. It would be mere harmless error affecting not the ultimate disposition because it yet leaves undisposed the question of respondent's interference with the tenure of Parker's employment.

In this respect the record contains ample substantiation for the position of the Board that respondent wrongfully caused Anderson-Westfall to discriminate against Parker because his union membership had been suspended for reasons other than nonpayment of dues.

Respondent next denies that foreman Reichel actually discharged Parker. The argument points out the absence of words indicating a formal discharge, but from the surrounding circumstances it is difficult to arrive at any other interpretation. The threat of three masons to leave the job if Parker did not, and Reichel's subsequent action in taking "him off the job" are consistent only with the theory that Parker was discharged. No set words are necessary to constitute a discharge; words or conduct, which would logically lead an employee to believe his tenure had been terminated, are in themselves sufficient.⁹

Respondent's main argument demands an examination of status of the position occupied by foreman Reichel. Respondent's contentions are threefold:

(a) Reichel had no authority from the employer to discharge Parker;

(b) Reichel had no authority from the union to cause Parker to be discharged; and

(c) No agency relation existed between the respondent union and Reichel, so as to charge the respondent for anything Reichel did on the Salem job.

The basis for this argument is respondent's contention of the inapplicability of respondent's "working rules" to any job located outside its jurisdictional area. The view taken is that the "working rules" apply only to jobs within local 555's area and do not apply in cases such as this where local 555 members work on a job located in another local union's territory, even with the permission and at the request of the other local. Upon this premise respondent contends that there is nothing authorizing a foreman to act in behalf of the union in any manner, nor is there any showing that in this case Reichel was employed pursuant to the rules or received any instruction from the employer regarding Parker's employment.

It may be observed that since Reichel was de facto employer's foreman at Salem it matters little whether his employment in that position was the...