National Labor Relations Board v. Local Union No. 55

• Decision Date: 31 December 1954
• Docket Number: No. 4926.,4926.
• Citation: 218 F.2d 226
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL UNION NO. 55; and Carpenters District Council of Denver and Vicinity, Affiliated With United Brotherhood of Carpenters and Joiners of America, A. F. of L., Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

218 F.2d 226 (1954)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL UNION NO. 55; and Carpenters District Council of Denver and Vicinity, Affiliated With United Brotherhood of Carpenters and Joiners of America, A. F. of L., Respondents.

No. 4926.

United States Court of Appeals, Tenth Circuit.

December 31, 1954.

Samuel M. Singer, Atty., Washington, D. C. (George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, Abraham Siegel, Atty., Washington, D. C., were with him on the brief), for petitioner.

Wayne D. Williams, Denver, Colo., for respondents.

Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit Judges.

PHILLIPS, Chief Judge.

This is a petition to enforce an order of the National Labor Relations Board. The Professional and Business Men's Life Insurance Company¹ is a Colorado corporation with its principal offices in Denver, Colorado. It is primarily engaged in the insurance business in a number of states, including Colorado. To provide available investments for the funds received from the insurance business, the Insurance Company engages in the construction and sale of residential dwellings in Denver and vicinity and has over $1,000,000 invested in mortgages on houses built and sold by it. Its construction operations are controlled and supervised by James C. Ely, its Denver office manager. Acting as its own general contractor, the Insurance Company completed 65 houses during 1952, and from January 1, 1953 to June 30, 1953, had completed or was in the process of constructing more than 100 houses in Denver and vicinity. In 1952 it expended $386,000 and during the first six months of 1953, $269,000, exclusive of the cost of land and labor, in its building operations. These amounts included $180,000 for building materials purchased in Colorado, but manufactured in other states.

At the inception of its construction business the Insurance Company employed Kirkland Brothers as its general contractor to construct its projects. However, since May, 1952, it has acted as its own general contractor and as such has employed carpenters, cabinet makers, painters, floor finishers and laborers. In addition, it has contracted with various subcontractors to perform specialized construction work on its projects. Although several of these subcontractors had signed collective bargaining contracts with different building trades unions, the Insurance Company operated an open shop, resulting in its appearing on the Unfair List of Local Union No. 55 and Carpenters' District Council² beginning about March 27, 1953.

The respondents had long been disturbed by the fact that union members had been working on projects of the Insurance Company alongside nonunion men, in violation of the By-Laws and Working Rules of Local 55 and the Working Rules of the District Council, both of which provide that "No member shall work where a non-union man is employed on any work coming under our jurisdiction * * *." Alex Mazaro, delegate of both respondents, took steps to correct such practice by exerting pressure on the Insurance Company and subcontractors of the Insurance Company, with the purpose to unionize the employees of the Insurance Company.

At a meeting held on December 15, 1952, Mazaro advised a group of union flooring contractors that they were violating union rules by working on nonunion projects. Mazaro warned these contractors that by January 1, 1953, unless the nonunion men on such projects were replaced by union members, the subcontractors would have to cease doing their work with union members, so that union members would not have to work with nonunion men. The flooring contractors countered with a proposal that respondents modify their prohibition against union carpenters working on projects employing nonunion men, but such proposal was rejected by the respondents. Thereafter, Mazaro repeatedly warned the flooring contractors that if their employees "were caught working on a nonunion job with nonunion men, * * * that man would be warned first and charges preferred against him, second, * * *." The Working Rules of both respondents provide for the imposition of fines against or expulsion of members violating the Rules. Mazaro warned Cromwell, a flooring subcontractor, that the rest of his men would be taken away from him and he would be placed on an Unfair List if he continued to work his men on nonunion projects. Despite Mazaro's warning Cromwell continued his work on the Insurance Company project until after January 1, 1953, the deadline set by Mazaro.

On January 27, 1953, Mazaro informed Cromwell he had found one of Cromwell's employees, Vincent Rossi, working on the nonunion Insurance Company project, contrary to union rules and beyond the January 1 deadline. Mazaro repeated his warning that such practice would have to be discontinued or he would take the rest of Cromwell's men away from him and that Cromwell was placing his employees "in jeopardy of having charges filed against them with Local 55." Cromwell protested that he had a written contract with the Insurance Company and that he did not want to give up the work, which he very much needed. Mazaro replied that he did not think it would be necessary for Cromwell to lose the work, since if the respondents could make it difficult enough for the Insurance Company to do its work, that possibly its employees would join the Union and the Insurance Company's subcontractors could retain and complete their contracts. As a result Cromwell removed Rossi from the Insurance Company job. Later that day, or the next day, Cromwell dispatched Employee Anderson to work on the Insurance Company project. Before reporting for the job Anderson requested Union Shop Steward Holmes to get Mazaro's permission for him to work. Holmes called Mazaro and the latter told him that Cromwell's employees could not work on the Insurance Company's project and that they would face Union charges if they did. Holmes transmitted that information to Anderson and two other Cromwell employees who stood nearby. Holmes also apprised Cromwell of his conversation with Mazaro and Cromwell later reassigned his employees to other jobs. Cromwell then acceded to respondents' pressures and informed the Insurance Company he could not perform his contract, citing difficulties with the respondents as the cause. As a result, the Insurance Company was forced to purchase floor surfacing and polishing machines and do its own floor surfacing and laying.

Following his earlier warnings to the flooring contractors, on January 14, 1953, Mazaro commenced to direct his attack against the Insurance Company. On that day he requested Ely to recognize Local 55 as bargaining agent and to "work union people on (the) job." Ely replied that it was a matter for the Insurance Company employees to decide. Later, and at a time when Mazaro was continuing pressure on Cromwell, Mazaro again met with Ely and requested Union recognition and gave Ely a form of contract for recognition of Local 55. That contract incorporated the Union's Working Rules. Mazaro also left Ely a copy of the Union's Working Rules. Ely again replied that it was up to the Insurance Company's employees to determine whether they wanted Local 55 as a bargaining representative and gave Mazaro permission to talk to the Insurance Company's employees. In February, 1953, Mazaro discussed the Union with the Insurance Company's employees at the job site. Thereafter, he polled the employees on the question whether they wished Local 55 to act as their bargaining agent. The employees voted 19 to 1 against Local 55 acting as their bargaining agent.

Following that, Mazaro again met with Ely and threatened to picket the Insurance Company's project, because "there were union and nonunion men on the job."

In February, 1953, Mazaro called a special meeting of union floor-laying employees of various employers, including Cromwell, and warned them that they would be subjected to penalties if they were caught working on nonunion jobs.

Mazaro also exerted pressure on John Mullican, an Insurance Company subcontractor and member of Local 55, to induce him not to work on the Insurance Company's project. About January 31, 1953, at a time when Mullican was engaged as a roofing subcontractor on the Insurance Company's project, Mazaro notified Mullican that he was violating union rules by working on a nonunion project. Sometime later, in a conversation at the job site, where Mullican's employees were at work, Mazaro informed Mullican that he would have to quit that work or face charges. Mullican refused to give up his contract with the Insurance Company and his employees were at work on the project when, on April 1, 1953, respondents' pickets appeared at the job site. On April 3, 1953, Mazaro preferred charges against Mullican, and on May 12, 1953, the District Council fined him $500.

Unsuccessful in their efforts to force the Insurance Company to sign a collective bargaining agreement, respondents on March 27, 1953, placed the Insurance Company on their Unfair List. About that time Mazaro notified Cliff Gould, a business agent of the Denver Building and Construction Trades Council, that respondents would soon begin picketing the Insurance Company's project. Shortly thereafter, John B. Chase, president of the Carpenters' District Council, directed Mazaro to picket the project. On April 1, 1953, respondents posted two pickets on the project with signs reading: "Working Conditions on This Job Unfair to Carpenters' District Council." The sign did not name the Insurance Company or otherwise identify it as the employer with which the respondents were in controversy. At work on the project when the pickets appeared were the Insurance Company's employees and employees of Price Plumbing and Supplies, one of the Insurance Company's subcontractors. None of these employees left their jobs at that time. On the...