NLRB v. Isis Plumbing & Heating Co.

• Decision Date: 23 September 1963
• Docket Number: No. 18364.,18364.
• Citation: 322 F.2d 913
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ISIS PLUMBING & HEATING CO., Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

322 F.2d 913 (1963)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ISIS PLUMBING & HEATING CO., Respondent.

No. 18364.

United States Court of Appeals Ninth Circuit.

September 23, 1963.

Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin J. Welles and Paula Omansky, Attys., N. L. R. B., Washington, D. C., for petitioner.

Hill, Farrer & Burrill, Carl M. Gould and Stanley E. Tobin, Los Angeles, Cal., for respondent.

Before HAMLEY, JERTBERG and DUNIWAY, Circuit Judges.

JERTBERG, Circuit Judge.

This case is before the court on the petition of the National Labor Relations Board (hereinafter the "Board") for enforcement of its order issued against respondent on September 19, 1962, in Case No. 21-CA-4579, pursuant to Section 10 (c) of the National Labor Relations Act, as amended, (29 U.S.C. §§ 151 et seq.). The Board's decision and order are reported at 138 NLRB No. 97. This Court has jurisdiction of the proceedings under Section 10(e) of the Act.

The Board found, upon charges filed by Local No. 582, United Association, affiliated with United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (hereinafter the "Union"), that respondent discharged and refused to reinstate Mark G. Harrigan because he preferred charges with the Union against a fellow Union member for violating provisions of the Union's constitution. The Board concluded that Harrigan's discharge was discriminatory in respect to hire and tenure of Harrigan's employment, contrary to Section 8(a) (3) of the Act, and constituted unlawful interference, restraint and coercion in the exercise of rights guaranteed him by Section 7 of the Act, in violation of Section 8(a) (1) of the Act.

In its order, the Board adopted the findings, conclusions and recommendations of the Trial Examiner contained in his Intermediate Report and Recommended Order which was issued April 11, 1962, after a hearing on February 19, 1962. The Board ordered respondent, inter alia:

(1) to cease and desist from violation of the Act in the particulars mentioned above;

(2) to offer Mark G. Harrigan reinstatement to his former or equivalent position; and

(3) to pay Mark G. Harrigan a sum of money equal to the amount which he normally would have earned as wages in respondent\'s employ between the date of his discharge and the date of any proper reinstatement offer (less net earnings during this period) together with interest at the rate of six percent per annum.

The issues raised in respondent's answer to the Board's petition are whether the evidence is sufficient to support the Board's finding that respondent terminated Harrigan's employment because he threatened to file and did file charges against two fellow workers; and, if the evidence is sufficient to support the finding, whether the order requiring interest on the back pay award is beyond the Board's statutory authority.

In order to place in proper focus respondent's contention that the finding of fact of the Board, that respondent terminated the employment of Mark G. Harrigan because he filed and threatened to file charges with the Union against two Union members who were employed as foremen by respondent, is not supported by substantial evidence on the record considered as a whole, it is necessary to summarize the testimony in the record.

The General Counsel's case in chief consists of the testimony of Harrigan and one Ray North, the business manager of the Union. Harrigan's testimony may be summarized as follows: That he had been a plumber for 41 years and a member of the Local Union for 21 years; that he was dispatched by the Local Union on October 30, 1961 to respondent's Gussen construction project where he was hired as a journeyman plumber by one Bernard Dean, who was respondent's foreman on the project; that he worked 8 hours on October 30th, on October 31st and November 1st; that his employment was terminated around noon on November 2nd by Dean who delivered respondent's check to Harrigan, which included 8 hours pay for November 2nd; that Dean stated to him that his work was satisfactory and that the termination of his employment was "an order from the shop"; that Dean stated "that they never wanted me on the job, and he would call the business manager and explain to him why;" that on October 31st, while working on respondent's project, he noticed Mr. Dean using his pickup truck and later noticed Mr. Kellogg using his station wagon during working hours; he spoke with each of them about the matter and stated his objections but did not indicate to either one that he would file charges; and on the next day he noticed Kellogg using his station wagon on two occasions, and told him, in the presence of Dean, of his intention to file charges with the Union that night; that at the direction of Mr. North he had an interview with Mrs. Ray, secretary-treasurer of respondent, at whose office he arrived at approximately quarter to twelve a. m., on November 3rd; that the interview lasted from five to ten minutes in the presence of Mrs. Ray's secretary; that during the interview Mrs. Ray called him a troublemaker and said she didn't want him on the job, that he was causing trouble and doing nothing but preferring charges against people; and that there was also some discussion concerning the renting by respondent of trucks belonging to their employees.

The record reveals that on November 14th Harrigan filed charges with the Union against Dean.

Mr. North's testimony may be summarized as follows: Mr. North testified he was business manager of the Local Union; that he had known Harrigan as a member of the Local for a number of years; that Harrigan had been an active member of the Local and had served on the Apprenticeship Committee composed of Union members and employer members; that the Union office dispatched Harrigan as a journeyman plumber to respondent's project on October 30, 1961; that on the evening of November 1, 1961, Harrigan filed a charge with the Union against one Ben Kellogg, a foreman of respondent on the Nabisco project, for using his own car on the company business in violation of the Union's constitution and the collective bargaining agreement between respondent and the Union; that on the morning of November 3rd, Mr. Dean phoned him and inquired about Harrigan's charge against Kellogg; that he told Dean that Harrigan had the right to file the charge, to which statement Dean agreed; that in the same conversation Dean also stated that Harrigan's work had been satisfactory, and that he didn't know why Harrigan's employment was terminated; that on the morning of November 3rd he phoned to Mrs. Ray and inquired as to the reason for Harrigan's discharge; that Mrs. Ray stated Harrigan was a troublemaker and had been on jobs before and had caused some trouble; that he explained to Mrs. Ray that Union members were forbidden to use their own cars on the employer's business; that he arranged an interview between Harrigan and Mrs. Ray for around 1:20 or 1:30 p. m. that day; that Harrigan was agreeable to the arrangements that had been made for the interview; that he was acquainted with members of the management of respondent; that they were not anti-union, and that the Union had had no prior difficulty with them.

The respondent's case may be summarized as follows:

In the fall of 1961, respondent was engaged as plumbing contractor on a construction project known as the Gussen project which was located on East Ball Road in Anaheim, California. Mr. Bernard Dean served as respondent's foreman on this project. At the same time respondent was engaged as plumbing contractor for a construction project near the Gussen project known as the "Nabisco" project. Mr. Ben Kellogg served as respondent's foreman on this project. In 1959 and in early 1961, respondent engaged as plumbing contractor on other projects which will be hereafter discussed. The witnesses for respondent were Bernard Dean, Ben Kellogg, above mentioned; Kenneth Westover, managing officer and president of respondent; Mary J. Ray, secretary-treasurer of respondent; Werner Wenedt, a journeyman plumber employed by respondent on the Gussen project; and Joe Andrews, a journeyman plumber and foreman employed by respondent on the Pacific-Hawaiian and the Autonetics projects, hereinafter mentioned.

Mr. Dean's testimony may be summarized as follows:

That he was a member of the Local Union; that he was employed by respondent as a foreman on the Gussen project, pursuant to an October 27th, 1961, request of the superintendent of the project's general contractor that the second floor "top-off" stage of the plumbing installation be speeded to completion, Dean called the Union office for the dispatch of three additional journeymen plumbers; on the morning of the next work day, Monday, October 30th, three men were dispatched to the site and were hired by Dean as journeymen plumbers; that Mark G. Harrigan was one of those hired; that while Dean was acquainted with Harrigan, the two of them had never worked together; that about noon of the same day, Mr. Westover, superintendent of respondent came to the job, and informed Dean that the hiring of Harrigan "didn't set too well with the company from previous work"; and instructed Dean that if there was any drinking, or if Harrigan tried to take over the job or cause any trouble, to let him know; that on October 31st, Harrigan informed Dean that it was against the Union rules for Dean to use his car in respondent's business; that after further discussion on the subject Harrigan told Dean "Well, use it till the end of the week, and then from then on don't use it any more."; that on the following morning Harrigan complained to Dean that Kellogg was using his car in respondent's business;

That on October 31st, Dean instructed Harrigan and Mr. Wenedt to work together; that the work they were assigned...