National Labor Relations Bd. v. George D. Auchter Co.

• Decision Date: 15 January 1954
• Docket Number: No. 14537.,14537.
• Citation: 209 F.2d 273
• Parties: NATIONAL LABOR RELATIONS BOARD v. GEORGE D. AUCHTER CO. et al.
• Court: U.S. Court of Appeals — Fifth Circuit

209 F.2d 273 (1954)

NATIONAL LABOR RELATIONS BOARD v. GEORGE D. AUCHTER CO. et al.

No. 14537.

United States Court of Appeals Fifth Circuit.

January 15, 1954.

A. Norman Somers, Asst. Gen. Counsel, Elizabeth W. Weston, Atty., David P. Findling, Assoc. Gen. Counsel, George J. Bott, General Counsel, Dean E. Denlinger, Attorneys, National Labor Relations Board, Washington, D. C., for petitioner.

Edwin C. Coffee, Harry G. Kincaid, Jacksonville, Fla., Knight, Walrath, Kincaid & Young, Jacksonville, Fla., Coffee & Coffee, Jacksonville, Fla., for respondent Carpenters Dist. Council of Jacksonville and Vicinity.

Before HUTCHESON, Chief Judge, and RUSSELL and RIVES, Circuit Judges.

RUSSELL, Circuit Judge.

The three respondents, George D. Auchter Company, Northeastern Florida Chapter of the Associated Contractors of America and Carpenters District Council of Jacksonville and Vicinity, hereinafter referred to respectively as Auchter, A. G. C. and Council, were each charged with certain unfair labor practices violative of the National Labor Relations Act, as amended, 29 U.S.C.A. § 151 et seq. The Labor Board sustained these charges and entered an order¹ which it now asks this court to enforce.

A. G. C. is a local, loosely knit association of general contractors, of which Auchter is a member. Council, an affiliate of United Brotherhood of Carpenters and Joiners of America, is a local autonomous labor organization whose membership is composed of eight locals of United Brotherhood within the Jacksonville area. On September 27, 1950, A. G. C. and Council entered into an agreement which, after reciting that A. G. C. wished to employ qualified workmen and that Council maintained an employment service and had available an ample supply of skilled workmen, contained the following provision, sometimes hereinafter referred to as the "first opportunity clause":

"Now, Therefore, the Contractors do agree to give the Local the first opportunity to supply their skilled mechanics for carpentry work provided that if such labor requirements are not supplied within forty-eight (48) hours after request, or if the men furnished on request are not qualified to perform their duties in the opinion of the Contractors, then the Contractors shall be free to obtain their labor requirements otherwise."

The members associated with A. G. C. were not individually bound by this agreement as it was understood that it would be binding only upon such members who accepted and ratified it. Auchter did accept and ratify the agreement and considered itself bound by it. The agreement contained no provision as to its duration, and, insofar as it appears from the record, it was in force and effect on October 25, 1950, and thereafter at all times pertinent to this controversy.

G. W. Kirby was a member of Carpenters Local No. 1778, Columbia, South Carolina, and was also a member of the International Association of Machinists. He had been employed by Auchter as a millwright, but had not become a member of any of the local labor organizations represented by Council. He voluntarily left this job in July, 1950. Though he thereafter made application for re-employment, Auchter, while desiring his services, refused employment because Kirby could not secure a "referral" or clearance from the Council.

The controlling questions presented here are whether there is adequate support in the evidence for the Board's finding that the charges were timely filed; that the A. G. C. and Council agreement of September 27, 1950, as understood and enforced by the nominal parties thereto and Auchter, was an illegal union-security agreement, the maintenance and enforcement of which constituted, as to Auchter and the A. G. C. a violation of Section 8(a) (3) and (1) of the Act, and as to the Council a violation of Section 8(b) (2) and (1) (A)² of the Act, and whether, as a result of such agreement and the employment practices under it, there was discrimination against Kirby. The evidence before us requires an affirmative answer to each of these questions.

The original charges were filed April 23, 1951, and served upon Council and Auchter on April 25th and 26th, respectively. The important date is that of a meeting between Kirby and A. A. Pittman, business representative of Council, in which Kirby sought a job referral so that he could go back to work for Auchter. Pittman refused to grant the request for the reason that Kirby was a member of both the carpenters union and the machinists union. There was a dispute as to whether this meeting was October 23rd, as testified by Pittman, or October 25th, as testified by Kirby. Kirby's testimony is corroborated by other evidence tending to establish this as the correct date. The crediting of this evidence by the trial examiner, accepted by the Board, finds substantial support in the record. For this reason, we overrule respondents' contention as to the jurisdiction of the Board to issue a complaint.

Actually, at the time of this denial, it was not the practice of Council to issue job referrals to applicants, but it was necessary for a member of a foreign local to secure clearance from Council before one of the constituent locals would issue a job referral to him. Pittman made it clear to Kirby that so long as he persisted in retaining his membership in the machinists union the services of Council would not be available to him. Notwithstanding this, Kirby went to the job where Auchter was engaged and, telling the superintendent, Sides, of his conversation with Pittman, asked the superintendent to give him employment on his machinists card. The superintendent stated that he would like to have Kirby but he was afraid that if he hired him on his machinists card there would be trouble with the carpenters local union and that all of the men would be pulled off of the job. He acknowledged that he had requested Pittman to send Kirby over. Pittman testified that Sides called him a few days later and told him that Kirby had applied to him for a job as a millwright. During that conversation he told Sides that Kirby was not eligible for employment because he had not produced the proper credentials. Several further attempts were made by Kirby to either secure a clearance from Council or to obtain employment from Auchter without a clearance. All of these attempts were futile for Auchter would not employ him without a clearance and Council would not give him a clearance as long as he retained his machinists card.

In an effort to justify this action, Council contends that Kirby never presented evidence that he...