National Labor Relations Bd. v. LOCAL UNION NO. 9, ETC., 7594.

• Decision Date: 02 June 1958
• Docket Number: No. 7594.,7594.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL UNION NO. 9, WOOD, WIRE & METAL LATHERS INTERNATIONAL UNION, AFL-CIO, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

255 F.2d 649 (1958)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL UNION NO. 9, WOOD, WIRE & METAL LATHERS INTERNATIONAL UNION, AFL-CIO, Respondent.

No. 7594.

United States Court of Appeals Fourth Circuit.

Argued April 10, 1958.

Decided June 2, 1958.

Thomas J. McDermott, Associate Gen. Counsel, N.L.R.B., Washington, D. C. (Jerome D. Fenton, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Fannie M. Boyls and William J. Avrutis, Attys., N.L.R.B., Washington, D. C., on the brief), for petitioner.

Thomas X. Dunn, Washington, D. C. (Martin F. O'Donoghue and Patrick C. O'Donoghue, Washington, D. C., on the brief), for respondent.

Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and THOMSEN, District Judge.

HAYNSWORTH, Circuit Judge.

This case is brought here by the petition of the National Labor Relations Board to enforce its order in an unfair labor practice proceeding (117 N.L.R.B. 352), which was founded in part upon an earlier decision (113 N.L.R.B. 1237) in a proceeding under Section 10(k) of the National Labor Relations Act. 29 U.S.C.A. § 160. It arises out of a controversy over the assignment of certain work in the installation of acoustical tile to carpenters rather than to lathers.

Anning-Johnson Company, through its branch office in Alexandria, Virginia, is engaged in the performance of contracts for the installation of acoustical tile and other construction work in the area of metropolitan Washington. Through its membership in the Construction Contractors Council it was bound by a contract with the Carpenters District Council which obligated the parties, in the assignment of work, to abide by decisions and awards of the National Joint Board for the Settlement of Jurisdictional Disputes, Building and Construction Industry. Anning-Johnson had no contract with the Respondent here, Local Union No. 9, or any other affiliate, of Wood, Wire and Metal Lathers International Union. Nevertheless, consistent with the practice in the Washington area, Anning-Johnson, for years, had employed lathers to install certain backing materials used in some systems for the installation of acoustical tile. Generally, if the specifications called for gypsum lath as the backing material, lathers were employed to install it, but if wider sheathing or wallboard was to be used, carpenters were employed for the purpose; if the specifications called for a metal suspension system that could be erected before tile was affixed, lathers were employed to erect the suspension system, but if the system was of a type which could be erected only as the tile was affixed, carpenters did the work.

In April 1954, the Lathers entered into a contract with the Employing Plasterers Association, of which Anning-Johnson was not a member, providing that lathers must be employed in the performance of designated work, including the installation of certain backing materials and suspension systems for plaster and for acoustical materials. To what extent the Employing Plasterers Association was concerned with the installation of acoustical tile is not clear, but the issue came to the fore when, in June 1954, the Lathers asked the Acoustical Contractors Association, of which Anning-Johnson was a member, to sign a contract containing provisions similar to those in the new contract with the Employing Plasterers.

A number of conferences were held in which representatives of the employers raised objections founded upon the apparent conflict between the contract proposed by the Lathers and the claims of the Carpenters under their contract with the Construction Contractors Council.¹ A meeting on June 15, 1954, ended with a suggestion that the controversy be submitted to arbitration. In discussing the Lathers' objections to work assignments on a particular job, Anning-Johnson, on an undetermined date that summer, also suggested that the controversy between the Lathers and the Carpenters be submitted to the Joint Board for decision. The Lathers did not pursue either suggestion.

The only difference between the Lathers and the Acoustical Contractors was the jurisdictional controversy. It was for that reason only that the Acoustical Contractors, and Anning-Johnson, had not signed the contract proposed by the Lathers.

On June 18, 1954, Anning-Johnson was actively engaged in the installation of acoustical tile at the Hill Road Pumping Station in Prince George's County, Maryland. The suspension system there was of a type which, under Anning-Johnson's established practice, was installed by lathers. Lathers were employed there for that purpose, and the assignment of work on that job accorded both with the claims of the Carpenters and the demands of the Lathers. Though there was, thus, no controversy about work assignments on the Pumping Station job, the Lathers, on June 18, refused to work on the stated ground that Anning-Johnson had not accepted the contract proposal of the Lathers. On the next workday, the 21st, carpenters having been assigned to the work, the Lathers had pickets on the job. Employees of other contractors refused to cross the picket line, and Anning-Johnson was forced to relinquish its contract.

A charge having been filed that the Lathers were engaged in an unfair labor practice within the meaning of § 8 (b) (4) (D) of the Act (29 U.S.C.A. § 158),² an administrative hearing under § 10(k)³ was held, after which the Board determined that Anning-Johnson's assignment of the disputed work was in accordance with area practice and within the right of the employer, and, since the Lathers had not been certified to represent employees doing the work in dispute and had no contract right to enforce, their strike to compel a reassignment of the work was an unfair labor practice within the meaning of § 8 (b) (4) (D).⁴ The Lathers did not comply with the determination, and, in a subsequent proceeding under Section 10(c), the Board ordered the Lathers to cease and desist from its conduct which the Board...