NLRB v. INTER. BROTH. OF BOILERMAKERS, ETC., LOCAL NO. 83

• Decision Date: 28 August 1963
• Docket Number: No. 17175.,17175.
• Citation: 321 F.2d 807
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, LOCAL NO. 83, AFL-CIO, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

321 F.2d 807 (1963)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, LOCAL NO. 83, AFL-CIO, Respondent.

No. 17175.

United States Court of Appeals Eighth Circuit.

August 28, 1963.

Jules H. Gordon, Atty., N. L. R. B., Washington, D. C., for petitioner, and Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Warren M. Davison, Atty., N. L. R. B., Washington, D. C., on the brief.

Harry H. Craig, St. Louis, Mo., for respondent and Gibson Langsdale, Kansas City, Mo., and Wiley, Craig, Armbruster & Wilburn, St. Louis, Mo., on the brief.

Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and YOUNG, District Judge.

VAN OOSTERHOUT, Circuit Judge.

This case is before us upon the Board's petition, pursuant to § 10(e) of the National Labor Relations Act as amended,¹ for enforcement of its order issued February 13, 1961, against Local 83. The respondent union filed a cross-petition to review and set aside the order. The Board's decision and order is reported at 130 NLRB 184. The findings and conclusions of the Trial Examiner, which the Board adopted, are reported with the Board's decision.

The labor dispute here involved arose in Missouri, within this circuit. The employer, Combustion Engineering, Inc., is engaged in commerce. Local 83 is a labor organization within the meaning of the Act. This court has jurisdiction under §§ 10(e) and 10(f) of the Act.

The Board upheld the General Counsel's contention that Local 83 violated § 8(b) (2) and (1) (A) of the Act by causing the employer to discriminatorily discharge employees Findley, Markus and O'Connor because they were not members in good standing in the union.²

Findley, Markus and O'Connor, prior to their expulsion by Local 83 on February 2, 1959, had been members of the union. The expulsions were for reasons other than nonpayment of dues and initiation fees. These men had opposed the election of Akers as business manager of the union and had instigated litigation against the union, and had thereby incurred the enmity of many of the union members. The reason for the expulsion is not definitely disclosed by the record and such reason is not material to the issues here presented.

In March, 1959, Combustion Engineering, Inc., the employer, was building a large steam-power boiler and doing some repair work at the Montrose Station of the Kansas City Power & Light Company. The employer procured all of its boilermaker employees for the project from Local 83. The union and the employer were parties to a collective bargaining agreement which permitted but did not require the employer to procure its boilermakers from Local 83. The union operated a hiring hall under the supervision of its business manager, William Akers. An applicable collective bargaining agreement required men to be certified for employment on a nondiscriminatory basis.

Findley, Markus and O'Connor registered for employment at the union hiring hall. When Findley's name was reached on the register, he was referred to the employer for employment with directions to report at the job site on the following morning, Wednesday, March 25. Under like circumstances, Markus and O'Connor were directed to report for work at the employer's job site on March 26.³

When Findley reported at the job site on March 25, he was accepted for employment. He was taken to the work site by union steward Henry Redel and told to work with the Ira Sparks' gang on top of the boiler. There were some 30 boilermakers on the job, all of whom were union members. Shortly after Findley came on the job, the union members started to leave the job. A number of the workers, including steward Redel, announced in the presence of others that they would not work with an employee without a union card. Within a short period, all boilermakers had left their work stations and at the suggestion of Redel had assembled in the workers' lounge room. Foreman Davis, steward Redel and Findley went to the office of the job superintendent, Bevlin. Bevlin called Akers and reported that the men had left the job because of Findley's appearance. Akers responded that he could not force the men to stay on the job. At Akers' request, Redel was put on the telephone. He was told to advise the men to go back to work. Redel answered that he would do so but that he did not think that it would do much good. There is some dispute as to what Redel said when he went out to the workers. The Examiner and the Board credited Findley's testimony that Redel said to Findley, "Why don't you go home; these men won't work with you, you don't have a ticket."

The Trial Examiner states:

"Findley, Davis, and Redel then walked out of the office and outside the door Redel again said, `why don\'t you go home.\' Findley replied that he did not have to go home. Findley then walked back through the office to the toolroom where Parks, the toolroom attendant asked him why he did not go home. Outside the toolroom the majority of the boilermakers, who had walked off the job, as previously described, were waiting in a type of anteroom provisioned with several vending machines. Redel walked up to the group of boilermakers and said, any of you men that want to work with Findley can go back to work. Many of the men replied that they did not want to work with Findley because he did not have a ticket. Those present, including Redel, then threw in their brass and proceeded to go home."

Some of the boilermakers who had walked off the job reported at union headquarters that afternoon and told Akers what had happened. Subsequently, Akers told Findley to report back to the job the next day (Thursday) and he also directed Markus and O'Connor to report for work at such time. While Markus and O'Connor were being processed in the employer's office, Boofer and Bruin, union members, were also being processed. Redel asked Boofer and Bruin, "Are you fellows going to work with these two? They haven't got a ticket." Bruin said no. Boofer said he would do whatever Akers wanted him to do. Redel repeated that the men had no union cards. Boofer then shook his head negatively. None of the men went out on the job that day. All went home shortly after 8 a. m., the time scheduled for commencing work.

Pursuant to directions given, most of the workers reported at union headquarters that afternoon and were advised orally and by letter that they did not have permission to walk off the job and they were ordered to return to the job and work.

Meanwhile, after the refusal of the men to work on Wednesday and Thursday, the employer's superintendent reported the walkout to his superiors. The company was under pressure to expedite the work. The superintendent was directed to terminate the employment of Findley, Markus and O'Connor.

Findley, Markus and O'Connor reported...