NLRB v. International Union of Operating Engineers

• Decision Date: 20 July 1961
• Docket Number: No. 16962.,16962.
• Citation: 293 F.2d 319
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION NO. 12, AFL-CIO, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

293 F.2d 319 (1961)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION NO. 12, AFL-CIO, Respondent.

No. 16962.

United States Court of Appeals Ninth Circuit.

July 20, 1961.

Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., and Hans J. Lehmann, Attys., N. L. R. B., Washington, D. C., for petitioner.

Charles K. Hackler, Los Angeles, Cal., for respondent.

Before BARNES and HAMLIN, Circuit Judges, and WALSH, District Judge.

WALSH, District Judge.

This case is before us upon a petition for enforcement of an order of the National Labor Relations Board (hereinafter "the Board") issued against International Union of Operating Engineers, Local Union No. 12, AFL-CIO, (hereinafter "respondent") following a decision by the Board that respondent violated Section 8(b) (4) (A) and (B) of the National Labor Relations Act¹ 61 Stat. 141; 29 U.S.C.A. § 158(b) (4) (A) and (B). The proceedings before the Board began with the issuance of a complaint by the General Counsel of the Board and the filing of an answer thereto by respondent. Thereafter, the parties stipulated the facts in connection with the charges against respondent, waived the taking of any testimony and the hearing and intermediate report processes before a Trial Examiner, and agreed that the matter might be transferred forthwith to the Board. Pursuant to the agreement of the parties, the Board transferred the proceedings to itself, fixed a time for filing briefs, and gave directions regarding requests for oral argument. Only the General Counsel filed a brief, and neither party requested argument.

From the stipulated facts it appeared that Pacific Engineers & Surveyors, Inc. and Kenneth W. Wright (hereinafter, respectively, "Pacific" and "Wright") were members of Tri County Association of Civil Engineers and Land Surveyors (hereinafter "Tri County"), an association of employers engaged in civil engineering and land surveying work in the State of California. Tri County engaged in collective bargaining and in the negotiation of labor agreements on behalf of its members, including Pacific and Wright; and in the spring of 1959 respondent was engaged in a campaign to obtain recognition as the collective bargaining representative of the employees of members of Tri County, including the employees of Pacific and Wright. However, respondent was not at any time material in the case the certified bargaining representative for the employees of any employer-member of Tri County.

In March and April, 1959, Lindero Investment Co., Inc., Rancho Estates, and Sinton & Savage (hereinafter, respectively, "Lindero", "Rancho", and "Sinton") were severally engaged in the business of land development. Lindero and Rancho in their operations used the services of four construction companies, viz.: William C. Wyckoff & Sons, Guido O. Ferrini, L. E. Webb Construction Co., and M. J. Hermreck (hereinafter, respectively, "Wyckoff", "Ferrini", "Webb", and "Hermreck"). Sinton, being engaged in construction work as well as land development, used its own construction employees.

Wyckoff, Ferrini, Webb, Hermreck, and Sinton each employed members of respondent union to operate construction power equipment, and each of these companies had a collective bargaining contract with respondent. A clause common to all of the collective bargaining contracts provided that: "If the Contractors, parties hereto, sub-contract job site work falling within the recognized jurisdiction of the Union, provisions shall be made in each sub-contract for the compliance by said sub-contractor with terms not less than those contained herein"; and wage rates specified in each of the collective bargaining contracts for members of survey crews were substantially higher than the rates paid by Pacific and Wright to comparable classifications of their employees.

About March 26, 1959, two of respondent's agents induced and encouraged Wyckoff's employees to engage in a strike on work being performed by Wyckoff for Lindero. The employees were instructed by respondent's agents not to work because the surveyors on the job site, who were employees of Pacific performing work pursuant to a contract between Lindero and Pacific, were nonunion. Respondent's agent Smith also told Wyckoff that respondent was closing down the job, and that respondent was standing on its subcontracting clause.

About March 31, 1959, an agent of respondent induced and encouraged employees of Ferrini, Webb and Hermreck to engage in a strike on work being performed by those employers for Rancho. Respondent's agent told some of the employees that they were not to work because the surveyors on the job site who were employees of Wright, performing work pursuant to a contract between Rancho and Wright, were not union men. Respondent's agent also told Hermreck that Hermreck's men could not work on the Rancho job because of the applicability of the subcontractor clause in the collective bargaining agreement between respondent and Hermreck.

About April 3, 1959, an agent of respondent induced and encouraged employees of Sinton to engage in a strike on a land development project being carried on by Sinton, telling the employees that they could not work so long as the surveyors on the job site, who were employees of Pacific performing work pursuant to a contract between Sinton and Pacific, were working on the project. About the same time, the agent informed Sinton that his men could not work on the job because the subcontract clause applied.

Upon the basis of the stipulated facts, the Board found: (a) that respondent induced the work stoppage of Wyckoff's employees about March 26, 1959, and the work stoppage of Sinton's employees about April 3, 1959, with the object of causing Lindero and Sinton to cancel their contracts with Pacific; (b) that respondent induced the work stoppage of the employees of Ferrini, Webb, and Hermreck about March 31, 1959, with the object of causing Rancho to cancel its contract with Wright; and (c) that respondent induced all of the work stoppages with the further object of forcing Pacific and Wright to recognize or bargain with respondent on behalf of their employees. In making these findings, the Board properly gave considerable weight to the fact that at the construction sites where work was being performed by the contractors for Lindero and Rancho, respondent told the employees of the contractors that they were to stop work because the employees of Pacific and Wright were nonunion; and respondent told Sinton's employees they could not work so long as the surveyors on the job were employees of Pacific. The Board concluded that, by...