National Labor Relations Bd. v. EF Shuck Const. Co.

• Decision Date: 15 January 1957
• Docket Number: No. 15084.,15084.
• Citation: 243 F.2d 519
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. E. F. SHUCK CONSTRUCTION CO., Inc., The Associated General Contractors of America, Seattle Chapter, Inc., The Seattle Construction Council and Hod Carriers' Building and Common Laborers' Union Local No. 242, AFL, Respondents. ASSOCIATED GENERAL CONTRACTORS OF AMERICA, SEATTLE CHAPTER, Inc., and its affiliate Seattle Construction Council, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

243 F.2d 519 (1957)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. E. F. SHUCK CONSTRUCTION CO., Inc., The Associated General Contractors of America, Seattle Chapter, Inc., The Seattle Construction Council and Hod Carriers' Building and Common Laborers' Union Local No. 242, AFL, Respondents.

ASSOCIATED GENERAL CONTRACTORS OF AMERICA, SEATTLE CHAPTER, Inc., and its affiliate Seattle Construction Council, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 15084.

United States Court of Appeals Ninth Circuit.

January 15, 1957.

Theophil C. Kammholz, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Arnold Ordman, Morris A. Solomon, Attys., N. L. R. B., Washington, D. C., for petitioner.

Lycette, Diamond & Sylvester, Lyle I. Iversen, Seattle, Wash., for respondent Associated Gen. Contractors of America.

Before DENMAN, Chief Judge, CHAMBERS, Circuit Judge, and MURRAY, District Judge.

DENMAN, Chief Judge.

The National Labor Relations Board seeks our enforcement of its order finding the respondent, the Associated General Contractors of America, Seattle Chapter, Incorporated, the Shuck Construction Company, hereafter the Company, and the Hod Carriers' and Building and Common Laborers' Union, Local 242, hereafter the Union, guilty of an unfair labor practice under the Act, 29 U.S.C.A. § 151 et seq., and ordering them to cease and desist therefrom and to make whole one Richard Kieburtz for the damages he sustained from such unfair labor practice. The Company and the Union consented to the Board's order and are not parties here; the Association, hereafter sometimes the respondent, has filed a cross petition for review of the order of the Board.

The respondent, an association of employers in the construction business in the Seattle area, negotiates collective bargaining contracts on behalf of its members with the Union. The contract signed by the respondent and the Union in November, 1950, provided, in effect, that the members of the association would grant preferences in employment to members of the Union.

In 1953, when the events giving rise to this case occurred, the E. F. Shuck Construction Company was not a member of the respondent association, although its president, Mr. E. F. Shuck, was a member individually. The Shuck construction business was operated as an individual enterprise by Mr. E. F. Shuck prior to 1949, when he incorporated his business. Since that time he has not engaged in the construction business individually, but solely through the company which has since its incorporation paid his dues in the association as a business expense. In 1955, the Shuck membership was transferred from Mr. Shuck individually to the corporate name.

In July, 1953, when this contract was in effect between the respondent association and the Union, one Richard Kieburtz, a student at the University of Washington and not a member of the union, sought employment from the Company on the construction of a school for a State of Washington school district. Kieburtz was hired and he offered to join the Union. The Union refused to admit him to membership, and the company thereupon fired him because, as a representative of the Company told him, "I don't know just what to tell you, kid. We have to go along with the Union on this, or they can make trouble for us."

Thereafter, Kieburtz filed a complaint with the Board.

The order of the Board requires the respondent association (1) to cease and desist from maintaining any provision of its contract with the Union "which conditions the hire of applicants for employment or the retention of employees in employment with any employer whose operations are in or affect commerce upon clearance by the * * * Union", other than a union security arrangement permitted by Section 8(a) (3) of the Act, and (2) to make Kieburtz whole for the loss he suffered by reason of the enforcement of the unlawful union security provision.

It is not questioned that the provision of the contract which confers preferences in hiring upon union members is a violation of the Act if applied so as to affect interstate commerce. See, e. g., N. L. R. B. v. Daboll, 9 Cir., 1954, 216 F. 2d 143, certiorari denied 1955, 348 U.S. 917, 75 S.Ct. 299, 99 L.Ed. 719.

Concerning the first provision of the order, respondent argues that it is not an employer within the meaning of the Act, and therefore that the Board was without power to enter an order against it.

There is no doubt that an employer's association such as the respondent which negotiates collective bargaining contracts on behalf of its members who engage in interstate commerce is an employer for the purpose of enabling the Board to order it not to maintain a provision of a contract affecting commerce which violates the Act. Red Star Express Lines of Auburn v. N. L. R. B., 2 Cir., 1952, 196 F.2d 78; N. L. R. B. v. George D. Auchter Co., 5 Cir., 1954, 209 F.2d 273; N. L. R. B. v. Waterfront Employers of Washington, 9 Cir., 1954, 211 F.2d 946. There is ample evidence in the record before us that the operations of the members of the respondent association have a substantial effect on interstate commerce.

The respondent next argues that any unfair labor practice committed by it in signing the contract occurred when the contract was made in 1950, and that since the complaint herein was not filed until 1953, the present action is barred by the six-month statute of limitations. 29 U.S.C.A. § 160(b). We disagree. The mere retention of such a clause in a contract in force between the parties is a continuing unfair labor practice even where there is no attempt to enforce it because so long as it remains a part of the contract it "tends to encourage membership in a labor organization" in violation of Section 8(a) (3). Red Star Express Lines v. N. L. R. B., supra, 196 F. 2d at page 81; N. L. R. B. v. Gottfried Baking Co., 2 Cir., 1954, 210 F.2d 772, 780.

Respondent next contends that the savings provision of the contract to the effect that any provision thereof "held" to be invalid under the Act should be deemed inoperative where commerce was affected, removes the offending union security provision from the contract in any case where the Board has jurisdiction to act. We reject this contention. First, the savings clause states that a provision "held" invalid shall be deemed deleted from the contract. Use of the word "held" indicates that an invalid provision is operative in interstate commerce until it is held invalid by the Board or by a court. Secondly, the provision is fatally vague because it does not state which provisions are suspended, and does not tell an unlearned employee which provisions are to be stricken where interstate commerce is involved. It has been uniformly held that such a provision does not exclude unlawful provisions from interstate commerce. Red Star Express Lines v. N. L. R. B., 196 F.2d at page 81; N. L. R. B. v. Gaynor News Co., 2 Cir., 1952, 197 F.2d 719, 723-724, affirmed Radio Officers Union of Commercial Telegraphers Union v. N. L. R. B., 1954, 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455. We conclude, therefore, that the Board properly ordered the respondent to cease maintaining the provision conferring the unlawful hiring preference on union members in the contract in so far as it affects interstate commerce.

As to the second provision of the order, the authority of the Board to make the association financially responsible for the discrimination against Kieburtz, the initial question concerns the membership of the E. F. Shuck Construction Co. in the respondent association. Respondent contends that the Company was not a member, although its...