NATIONAL LABOR RELATIONS BOARD v. LOCAL 1976, ETC., 15026.

• Decision Date: 12 February 1957
• Docket Number: No. 15026.,15026.
• Citation: 241 F.2d 147
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 1976, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, and Los Angeles County District Council of Carpenters and Nathan Fleisher, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

241 F.2d 147 (1957)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 1976, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, and Los Angeles County District Council of Carpenters and Nathan Fleisher, Respondents.

No. 15026.

United States Court of Appeals Ninth Circuit.

February 12, 1957.

Theophil C. Kammholz, General Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., and Norton J. Come, Washington, D. C., for National Labor Relations Board.

Arthur Garrett and James M. Nicoson, Los Angeles, Cal., for Local 1976, United Brotherhood of Carpenters & Joiners, etc., et al.

Before HEALY, LEMMON, and FEE, Circuit Judges.

LEMMON, Circuit Judge.

While the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., hereinafter referred to as the Act, has been termed in "its inception a novel experiment", which "has remained a controversial piece of legislation",¹ its provisions dealing with secondary boycotts — at least insofar as they are applicable to the instant case — seem to us to be tolerably clear and eminently fair.

1. Statement of the Case

The Sand Door and Plywood Company, of Los Angeles, California hereinafter Sand, on August 25, 1954, filed a charge against the respondents, hereinafter the Union, alleging that the latter had engaged in unfair labor practices within the meaning of 29 U.S.C.A. § 158(b) (4) (A).

On September 24, 1954, the General Counsel of the National Labor Relations Board, hereinafter the Board, before which the charge had been filed, presented a complaint against the Union, which in substance alleged that the Union, "since on or about August 17, 1954, * * * had instructed the employees of Havstad & Jensen" at a certain college to be detailed hereinafter, and the employees of other employers, "to refuse to install Paine Rezo doors infra because the Union's rules and by-laws prohibit the installation of products not bearing the union label," etc. It was further alleged that by such conduct the Union had "engaged in, and * * * induced and encouraged the employees of Havstad & Jensen and of other employers to engage in, strikes or concerted refusals in the course of their employment to use, manufacture, etc. * * * goods, articles, etc. * * * or to perform services."

The complaint also averred that an object of the Union's "acts and conduct * * * is to force or require Havstad & Jensen, Watson and Dreps infra and other employers or persons to cease using, etc. or otherwise dealing in the products of Sand and Paine and to cease doing business with Sand and Paine".

By the above acts, the complaint continued, the Union was engaging in unfair labor practices within § 158(b) (4) (A).

The Union's answer denied the commission of the unfair labor practices alleged, and affirmatively averred that "the Board lacked jurisdiction over the subject matter of the complaint or of the persons of the respondents".

On October 15, 1954, Sand filed a "First Amended Charge", and on the same day the Board filed an "Amendment to Complaint", neither of which materially altered their respective original allegations.

On December 13, 1954, the Trial Examiner filed an "Intermediate Report and Recommended Order", in which it was "recommended that the complaint be dismissed in its entirety".

On August 26, 1955, the Board handed down a "Decision and Order" holding that "By inducing and encouraging employees of Havstad and Jensen to engage in a strike or concerted refusal in the course of their employment to handle or install doors manufactured by Paine Lumber company hereafter Paine, an object thereof being to force and require Havstad and Jensen to cease using, handling or otherwise dealing in the products of Paine * * * and to force or require Sand * * * to cease doing business with Paine * * *, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (4) (A) of the Act". 113 NLRB 1210, No. 123.

The Decision and Order were signed by two members of the Board, including the chairman, and was specially concurred in by a third member. Two members dissented.

On February 3, 1956, the Board filed in this Court a petition for enforcement of the Board's order. It is that petition which we are here considering.

2. Statement of Facts

Havstad and Jensen, joint venturers, were engaged in the construction of a hospital and other buildings on the campus of the College of Medical Evangelists, a medical school and nurses' training school owned and operated by the Seventh Day Adventists in Los Angeles.

Doors for the hospital, which was known as the White Memorial Hospital, were manufactured by Paine, and were purchased by Sand, a wholesale jobber and exclusive agent for Paine in Southern California. Sand sold the doors to Watson & Dreps, mill work contractors, with delivery between August 14, 1954, and August 17, 1954. Although counsel for the Union claims that "The record does not show what Watson & Dreps did with these doors", there is testimony that delivery of the doors to the job, where Havstad & Jensen were in charge, commenced on the Friday before August 17, and that on August 17, a member of the firm of Watson & Dreps informed James C. Barron, vice president and general manager of Sand, that Emmett R. Jensen, one of the joint venturers with Larry C. Havstad, had reported "that the carpenters on the job had refused to handle the doors because the doors did not have a union label." This testimony provides a sufficient link between Watson & Dreps and Havstad & Jensen, as regards the doors.

Between 10 and 11 o'clock in the forenoon of August 17, 1954, Arnold Steinert, carpenter foreman of Havstad & Jensen, was told by Nathan Fleisher, business agent of Local 1976, one of the respondents herein, that "we'd have to quit hanging the doors until they got it settled that they were union or non-union doors, and they were going to check on 'em and in a day or two they would be cleared and then we could go ahead and go to work * * * he said they were non-union doors, and they didn't have a label and we'd have to quit hanging the doors until it was settled."

Earlier in the morning, Steinert had assigned laborers "to move the doors from floor to floor, the doors that went on each floor". He had also assigned Sam Agronovich, a carpenter, to start hanging doors. When Steinert received the order from Fleisher "to quit hanging the doors", he proceeded to carry out the mandate:

"Well, the laborers were moving the doors from floor to floor so I told them to leave them alone, leave \'em set and we went down into the basement where Sam Agronovich was working and told him we\'d have to quit hanging the doors because they weren\'t union until they got it settled."

Fleisher was present when Steinert talked to Agronovich.

When James Layton Nicholson, Havstad & Jensen's general superintendent of construction on the White Memorial Hospital project, arrived at his office that same morning, he was informed by the firm's secretary that "Fleisher had been on the job and had called the carpenters off from hanging the doors." Nicholson went to the jobsite and "observed that the laborers that were supposed to be placing the doors were not working at the time". When he asked the laborers for the reason, "All they said is that the union stopped them from hanging the doors, * * * and they were waiting for my foreman to replace them, or, in other words, give them other duties. * * *"

Nicholson found Fleisher, who was also at the building site, and asked him why he had stopped the men from hanging the doors. The following conversation, according to Nicholson, ensued:

"He says he had orders from the District Council that morning to stop them from hanging the doors until they could establish the fact whether they were union or non-union made doors. He says, `I could have pulled them off yesterday but I waited until today.\' And I told him at the time that, well, I says that I always thought I should have notice before anybody could be pulled off, and he says, `Well, those are my orders\', so he says `We will have to stop hanging the doors until they get cleared by the union\'."

At that juncture, Sam Agronovich and Saul Agronovich, the latter being the steward and also a carpenter, came up. Superintendent Nicholson at first told them that "if we can't hang the doors they might as well pick up their tools." Later Nicholson reconsidered the matter and told Steinert "to relocate the men and in such a way they could keep on working."

On that day and the next, James C. Barron, the Sand executive, supra, got into touch by telephone with Earl Thomas, of the Los Angeles County District Council of Carpenters. In a second conversation Thomas informed Barron that he had received a telegram from a union officer in Wisconsin, informing him that "the doors were not union made and that Paine * * * did not belong to any union." According to Barron, the following conversation then ensued:

"I replied to him that — `Well, what are we going to do here, because the doors are here, and we are an innocent bystander? We are union and Watson & Dreps are union and the contractors are union, even the people that hauled the doors out here on the train were union people.\' He said, `Well, * * * under the circumstances, we can\'t hang non-union doors,\' but he said to me, `Why don\'t you buy union doors?\'"

Barron also talked to Fleisher, who told him "that the doors don't have a union label, and they have to be cleared before I can permit them to be hung."

Jensen, of Havstad & Jensen, also talked to Thomas, who told him that he had found out that Paine "was not a union operation," and "that the carpenters would not be able to handle those doors".

On Tuesday, October 5, 1954, after Sand had filed the instant charges and the Board had sought a temporary restraining order, Superintendent Nicholson, who was himself "a union man", and Steinert asked each carpenter, separately, whether he "would be...