National Labor Relations Board v. FH McGraw & Co.

• Decision Date: 07 July 1953
• Docket Number: No. 11778.,11778.
• Parties: NATIONAL LABOR RELATIONS BOARD v. F. H. McGRAW & CO. et al.
• Court: U.S. Court of Appeals — Sixth Circuit

206 F.2d 635 (1953)

NATIONAL LABOR RELATIONS BOARD v. F. H. McGRAW & CO. et al.

No. 11778.

United States Court of Appeals Sixth Circuit.

June 4, 1953.

Petitions for Modification and Rehearing Denied July 7, 1953.

COPYRIGHT MATERIAL OMITTED

Joseph Lotterman, New York City, for respondents.

George J. Bott, Gen. Counsel, David P. Findling, Asso. Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Samuel M. Singer, Dean E. Denlinger, Attys., N. L. R. B., Washington, D. C., on brief, for petitioner.

Wheeler & Marshall, Paducah, Ky., and Lotterman & Tepper, New York City, on brief; James G. Wheeler, Paducah, Ky., Ralph R. Weiser, New York City, of counsel, for respondent F. H. McGraw & Co.

Before MARTIN, McALLISTER, and MILLER, Circuit Judges.

McALLISTER, Circuit Judge.

The National Labor Relations Board filed a petition for enforcement of its order requiring respondents to cease and desist from unfair labor practices in violation of Title 29 U.S.C.A. § 158(a) (3) and (1) and (b) (2) and (1) (A), in continuing in existence, maintaining in effect, entering into and enforcing illegal hiring agreements and arrangements between the company and the International Union of Operating Engineers, A. F. L., and its Local 181, hereinafter called the Union, and, further, requiring respondents to post the appropriate and customary notices directed by the Board.

In 1951, respondent company entered into a contract to erect a plant for the Atomic Energy Commission, covering many square miles, near Paducah, Kentucky, at a cost of approximately $350,000,000, and in carrying out such construction work, it has employed a force of between 10,000 and 12,000 workmen.

The agreements and arrangements which the Board found constituted unfair labor practices grew out of a written collective bargaining agreement entered into between the union and respondent company on July 29, 1948, and covered the company's operations on a nationwide basis. Among its provisions, the company agreed to pay the scale of wages, work the schedule of hours, and conform to the conditions of employment in force and effect in the locality where the company would be performing work. The company, in this contract, also agreed to employ only members of the union in good standing on work coming under its jurisdiction, provided the union could promptly furnish such workmen. The contract was automatically renewed on a year-to-year basis, unless timely notice to terminate was served or in case its terms in this regard were changed or amended by the parties through mutual agreement; and this contract was in effect at the time of the hearing before the Board.

In accordance with the terms of this agreement to conform to the scale of wages, schedule of hours, and conditions of employment in force and effect in the locality where the company performed work, respondent company made it a practice to abide by the terms and conditions of whatever area agreements were in effect with local affiliates of the International union having territorial jurisdiction where the projects of the company were located.

In conformity with the above general pattern, the Board found that respondent company, when it began hiring early in 1951 at the Paducah project, considered itself bound in its hiring practices by the agreement in force between construction contractors in that area and Local 181, the affiliate of the International union having territorial jurisdiction, although no written contract was executed by the respondent company and the Local union; that one of the clauses in the area agreement, to which respondent company orally agreed, provided that the contractor agreed to employ through the office of Local 181, only members who were in good standing with the union, and that the union would have 48 hours to fulfill requests for operating employees. Such findings were amply sustained by substantial evidence.

The Board further found — and such findings were sustained by substantial evidence on the record as a whole — that the following hiring procedure had been worked out between the company and Local 181: Upon receipt of a requisition slip from the department head calling for a certain number of operating engineers in described classifications, the company's personnel office contacted the business office of the Local, usually by telephone, and requested the dispatch of qualifying applicants. The Local then sent to the company's office the number of men requested, each with a referral card from the Local, showing his name, craft, and prevailing rate. The men thus referred were considered by the company's personnel office and hired if deemed qualified. The methods followed by the company in the hiring of the employees required the execution of an application form, which asked the applicant to disclose the name of any union in which he held membership. All craft employees within the jurisdiction of the International and Local 181 were hired through the Local, in accordance with the foregoing procedure; and the company made no attempt to obtain such employees from any other source. Nonmembers of the union, or members of another local, seeking a referral from the Local to the company, were obliged to obtain a work permit from the Local, for which there was a fixed fee of $2.50. In referring employees to the company, the normal policy of the Local was to give preference, first, to its own members, and secondly, to other members of the International, with members of other unions and nonunion employees ranking last, although it appears that there were so many jobs to fill that nonmembers of the union did not suffer exclusion from employment by the company through the above mentioned methods. However, if a member of the International union was delinquent in the payment of dues or other charges assessed against him, the Local would not refer him for employment. In addition to giving effect to the union security clause of the 1948 contract between the company and the International, the company agreed to carry out other provisions of the areawide agreement between the Local and construction contractors performing work within the Local's territorial jurisdiction. Moreover, the company recognized the Local as the bargaining representative of its employees in the job classifications covered by the agreement, and dealt with the Local as such representative. Respondent company has attempted to follow all the terms and conditions of employment set out in the area agreement, such as the scale of wages fixed therein; and it has negotiated with the Local all grievances arising from asserted departures from the provisions of the agreement. The Local likewise regarded the standard areawide contract as binding on respondent company, although unsigned by it. As an instance, in grievance negotiations, the Local took the position that respondent company was obliged to follow the terms and conditions of the standard area contract to which it had agreed verbally; and in a representation proceeding instituted upon petition of a rival union seeking an election among at least some of the covered employees, the Local appeared as an intervenor and joint respondent, in contending that the petition was barred by the written nationwide agreement of 1948 between respondent company and the International, as well as by the local area agreement between respondent company and the Local, which had been adopted by the company.

At this point, it should be remarked that, with regard to the foregoing findings of the Board, respondents submit that Section 10(b) of the Act, 29 U.S.C.A. § 160(b), forbids the entry of findings of unfair labor practices based upon conduct occurring more than six months prior to the filing and serving of charges, and that, in this case, the Board's findings were invalid because the 1948 contract was executed more than six months before the filing and serving of the charges in the proceedings here in question. However, the unfair labor practice alleged in the complaint was not the execution of this contract, but its enforcement and implementation after June, 1951, all of which took place within the period of limitations provided in the Act. As long as the contract in violation of the Act continued in force, a continuing offense was being committed; and since the contract was in force at the time of filing, the six-month period of limitations had not begun to operate; and the complaint was, in all respects, valid. Katz v. National Labor Relations Board, 9 Cir., 196 F.2d 411; National Labor Relations Board v. Gaynor News Co., Inc., 2 Cir., 197 F.2d 719; National Labor Relations Board v. United Hoisting Co., Inc., 3 Cir., 198 F.2d 465.

Section 8(a)(1) and (3) of the National Labor Relations Act, as amended by the Labor Management Relations Act of 1947, 29 U.S.C.A. § 158(a)(1) and (3), provides that it shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of their rights of self-organization, under Section 7, 29 U.S.C.A. § 157, to bargain collectively through representatives of their own choosing, or to refrain therefrom, "by discrimination in regard to hire or tenure of employment or any term or condition of employment".

Section 8(b) (2) and (1) (A) of the Act provides that it shall be an unfair labor practice for a labor organization or its agents: to cause or attempt to cause the employer to discriminate against the employee in violation of Section 8(a)(3); and to restrain or coerce employees in the exercise of their rights of self-organization under Section 7.

These sections of the Act are violated if an employer and a union execute, maintain, or enforce a closed shop agreement. National Labor Relations Board v. Electric Vacuum Cleaner Co., Inc., 315 U. S. 685, 62 S.Ct. 846, 86 L.Ed. 1120; National Labor Relations Board v. Lloyd A. Fry Roofing Co., 9 Cir., 193 F.2d 324. Further, the prohibitions contained in these sections of the...