National Labor Rel. Bd. v. Denver Bldg. & Const. T. Coun., 4939.
| Decision Date | 14 February 1955 |
| Docket Number | No. 4939.,4939. |
| Citation | 219 F.2d 870 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL et al., Respondents. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Ruth V. Reel, Washington, D. C. (George J. Bott, David P. Findling and Elizabeth Weston, Washington, D. C., appeared with her on brief), for petitioner.
Phillip Hornbein, Jr., Denver, Colo. (Phillip Hornbein and Roy O. Goldin, Denver, Colo., appeared with him on brief), for respondents.
Before BRATTON and MURRAH, Circuit Judges, and VAUGHT, District Judge.
This case is before this court upon the petition of the National Labor Relations Board (herein called Board) pursuant to Section 10(e) of the National Labor Relations Act, as amended, 61 Stat. 136, 29 U.S.C.A. § 151 et seq., for enforcement of its order issued against respondents on April 21, 1954. Respondents are Denver Building and Construction Trades Council (herein called Council) and six constituent unions: International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 24, AFL (herein called Iron-workers); International Hod Carriers, Building and Common Laborers' Union of America, Local Union No. 720, AFL (herein called Hod Carriers); Brotherhood of Painters, Decorators and Paperhangers of America, Local Union No. 79, AFL; International Union of Operating Engineers, Local Union No. 9, AFL; and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Unions No. 208 and No. 3, AFL. This court has jurisdiction of the proceeding under Section 10(e) of the Act, the alleged unfair labor practices having occurred near Leadville, Colorado, within this judicial circuit.
The statement of facts, as presented in the brief of the petitioner and fully supported by the record, is as follows:
The Board found that respondents violated Section 8(b) (4) (A) of the Act by picketing and related activities at the premises of Climax Molybdenum Company (herein called Climax) to induce or encourage employees of Climax and of various neutral contractors on the Climax premises to engage in a concerted refusal to work, with the object of: (1) forcing Climax to cease doing business with C. Ryan and Sons (herein called Ryan), a contractor on the Climax premises with which respondents had a labor dispute, and (2) forcing the other contractors (herein referred to collectively as Contractors other than Ryan), to cease doing business with Climax in order to force Climax to cease doing business with Ryan.
Climax mines and mills molybdenum ore and also maintains a self-sufficient community for its employees within a fenced area of two or three square miles in the mountains near Leadville, Colorado. During the summer of 1953, Climax was engaged in a substantial expansion program. Numerous contracts with four or five prime contractors were under way and, as is customary in the construction industry, several subcontractors were working on the projects. Included among the prime contractors was Ryan, which had nine written contracts for grading and excavating building sites, grading roads, enlarging storage and parking areas, installing sewer and water systems, and transporting slag ballast. In addition to these construction contracts and one for open pit mining, which were on a cost-plus-fixed-percentage basis, Ryan had a firm bid contract for furnishing sand and gravel.
Although not the only earthmoving contractor to which Climax let contracts, Ryan had done business with Climax for 14 or 15 years. Its main office was in Lakewood, a suburb of Denver, some 60 miles from the Climax premises. It employed a work force of 50 or so men, substantially all of whom were currently engaged on its Climax contracts. The extensive equipment required for its operations was owned by Ryan or leased by it from persons other than Climax. Climax had no financial or business interest in Ryan, and no power to hire, discharge, or direct Ryan's employees.
Because of their long association and the nature of earthmoving work, Ryan's 1953 contracts with Climax contained no detailed specifications. Some of them provided that Ryan would excavate and grade "as directed" by Climax engineers or "in accordance with the cut and grades set by" Climax engineers. The parties had an implied understanding that the Climax engineering staff would work ahead of Ryan, placing survey stakes or bench marks to designate grades and baselines, and check frequently to see that the results were satisfactory. According to Climax, its engineers designate "not how the contractor does his work but how the work must be completed," and supervise other contractors on the Climax projects in the same manner. Ryan's construction contracts specified commencement and completion dates, but were terminable without notice by Climax.
Under their typical contracts, Climax compensated Ryan on a "cost-plus" basis, and any increases or decreases in the wages paid by Ryan to laborers were passed along to Climax except where, as in the case of one elaborate contract performed in 1951, the parties had agreed in advance to a ceiling on such wages. This reimbursable labor item, however, accounted for only a small percentage of the total amounts paid out by Climax on Ryan contracts. The major cost item was rental for Ryan's heavy equipment which was furnished with operators, and Lee Ryan testified that in cases where the operators' wage rates were increased his firm absorbed the difference. Ryan, like many of the other contractors having cost-plus arrangements with Climax, often advised Climax in advance when it contemplated an upward revision of wages and received assurance that Climax would not object to the resultant increase in reimbursable costs. Under the usual contract, however, Ryan was not required to give Climax notice or obtain its consent to prospective wage changes, and increases even in reimbursable items were not infrequently effected before Climax was notified.
Upon the foregoing facts, the Board found that the...
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