NLRB v. LOCAL UNION NO. 80, SHEET METAL WKRS'. INT. ASS'N, 19904.

• Decision Date: 15 February 1974
• Docket Number: No. 19904.,19904.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL UNION NO. 80, SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION, AFL-CIO, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

491 F.2d 1017 (1974)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL UNION NO. 80, SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION, AFL-CIO, Respondent.

No. 19904.

United States Court of Appeals, Sixth Circuit.

Argued December 11, 1973.

Decided February 15, 1974.

Charles P. Donnelly, N. L. R. B., Washington, D. C., for petitioner; Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Paul Elkind, Chief, Contempt Litigation, Baruch A. Fellner, Atty., N. L. R. B., Washington, D. C., on brief.

David Y. Klein, Southfield, Mich., for respondent; Sharples, Klein & Gale, Southfield, Mich., on brief.

Before PHILLIPS, Chief Judge, MILLER, Circuit Judge, and O'SULLIVAN, Senior Circuit Judge.

PHILLIPS, Chief Judge.

On October 9, 1969, this court entered a consent judgment enforcing the order of the National Labor Relations Board against the respondent Union in Board cases 7-CA-6987, 7-CA-6987(2), 7-CA-7066, 7-CB-1841, 7-CB-1841(2), 7-CB-1841(3), 7-CB-1846, 7-CB-1908 (1) through 7-CB-1908(5), 7-CB-1918 and 7-CB-1918(2).

The order of the Board which was enforced by this court requires the respondent Union to cease and desist from:

"(a) Causing or attempting to cause . . ., any . . . employer-member of the Sheet Metal Employers\' Association of Detroit, or any other employer, to discriminate with regard to hire, tenure, or other terms or conditions of employment against . . . any . . . employee, in violation of Section 8(a) (3) of the Act and because such employee is not a member of Local Union No. 80, Sheet Metal Workers\' International Association, AFL-CIO.

* * * * * *

"(c) Operating or maintaining a referral or other hiring system which discriminates against non-members or favors members of Local Union No. 80, Sheet Metal Workers\' International Association, AFL-CIO.

"(d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act."

Thereafter the Board filed a petition for adjudication in civil contempt, charging that the respondent Union has disobeyed and failed and refused to comply with the consent judgment of this court.

Respondent Union filed an answer denying that it has disobeyed said judgment of enforcement.

Thereafter this court entered an order of reference appointing Honorable Thomas P. Thornton, Senior Judge, United States District Court for the Eastern District of Michigan, as Special Master to hear evidence and report to this court as to whether respondent is in civil contempt for violating, disobeying and failing and refusing to comply with the court's decree.

The Special Master heard evidence and filed a report containing comprehensive findings of fact. The Special Master concluded that the respondent Union has violated and disobeyed the decree of this court by causing or attempting to cause employers to discriminate against employees in violation of §§ 8(b) (1) (A) and 8(b) (2) of the National Labor Relations Act. He recommended that this court enter an order adjudging Local 80 in civil contempt and directing that the Union be required to purge itself as prayed in the Board's Second Amended Petition for Adjudication in Civil Contempt. The findings of fact of the Special Master are made an appendix to this opinion.

Upon consideration of the briefs and oral arguments of the parties and the entire record, this court concludes that the findings of fact of the Special Master are supported by substantial evidence and should be approved and confirmed in all respects.

The following order will be entered:

The National Labor Relations Board having filed a petition to adjudge in civil contempt Local 80, Sheet Metal Workers' International Association, AFL-CIO, in that said respondent has failed and refused to comply with the decree of this court dated October 9, 1969; and said respondent having filed an answer denying that it has disobeyed the decree; and Senior United States District Judge Thomas P. Thornton in his capacity as Special Master having made a report recommending that Local 80 be adjudged in civil contempt of this court and that said respondent be required to purge itself thereof;

It is ordered that the findings of fact and conclusions of the Special Master be approved and confirmed in all respects.

It is further ordered that Local 80, Sheet Metal Workers' International Association, AFL-CIO, is hereby adjudged in civil contempt of this court's aforesaid decree.

It is further ordered that the respondent Union, and its officers, representatives, agents, successors and assigns, shall forthwith purge themselves of such contempt by:

(a) Complying fully with and obeying the Board's order as enforced by this Court's consent decree of October 9, 1969.

b) Immediately posting in conspicuous places at Local 80's business offices, including all places where notices to members are customarily posted, for a period of sixty (60) consecutive days, copies of the contempt adjudication and of an appropriate notice in the form to be supplied by the Board signed by an officer of Local 80 which states that Local 80 has been adjudicated in civil contempt of this Court for violating and disobeying, and failing and refusing to comply with this Court's said consent decree, and that Local 80 will undertake forthwith the action ordered in purgation, said notices, together with a copy of the contempt adjudication to be maintained in clearly legible condition throughout such posting period, and insuring that they are not altered, defaced or covered by any other material.

(c) Providing signed copies of said notice for posting by the employers involved herein, and by all the employers who are members of the Sheet Metal Employers' Association of Detroit, as well as all employers who have exclusive hiring hall arrangements with Local 80, if these employers are willing, in places where notices to employees are customarily posted.

(d) Immediately signing and mailing copies of said notice to James Patton, Robert Petit, Remo Gizzi, Almond Dumas, Paul Kaczmar and Kenneth Maddox and to all employers with whom Local 80 has a signed agreement or for whom Local 80 maintains a hiring hall service.

(e) Making James Patton, Robert Petit, Remo Gizzi, Almond Dumas, Paul Kaczmar and Kenneth Maddox whole for any loss of backpay they may have suffered respectively as a result of the discrimination against them said backpay to be computed by the Board, subject to review by this Court.

(f) Taking the following affirmative action:

(1) Notify in writing, within 15 days of the issuance of this Order, each and every sheet metal contractor within its territorial jurisdiction with whom it does not have an exclusive referral service arrangement, that it is free to solicit, hire and retain employees including sheet metal workers, without clearance or referral from Local 80.

(2) Notify in writing, within 15 days of the issuance of this Order, each and every sheet metal contractor within its territorial jurisdiction with whom it has an exclusive referral service arrangement, that the Union will operate said exclusive referral service in a non-discriminatory manner and in accord with the terms and requirements set forth below.

(3) If in its referral system, the Union applies any criterion for determining the capabilities of persons to perform any job assignment within its jurisdiction, then said criteria shall be posted in a public place at its hall, shall not directly or indirectly inure to the advantage of members over non-members, and shall not directly or indirectly be based upon the prior use of the Union's hiring hall.

(4) Record in permanent, non-loose leaf form, and post the name of each employer from whom a request for employees has been received, the date and time said request was received by the Union, the location of the project for which employees have been requested, and the number of employees requested.

(5) Maintain in non-loose leaf form permanent records of and post the name, address and telephone number of each applicant for referral to employment and the date and time said applicant applied for referral, irrespective of the applicant's membership in Local 80, or lack thereof. Said applications for referral shall be maintained in the order in which they are submitted by said applicants.

(6) Refer applicants to employment when employees are requested by an employer in the order in which said applicants have submitted their applications, irrespective of their membership in Local 80, or lack thereof.

(7) Maintain in non-loose leaf form records of and post all referrals presented to applicants, containing the name of the applicant referred to employment, the name of the employer to whom referral is made and the specific project to which the applicant is being referred, the name or initials of the Union officer authorizing the referral, and the date and time that said applicant was referred to employment.

(8) Maintain in non-loose leaf form permanent records of and post all names of persons referred to employment in specific written or oral requests by name, from employers, and refer any person so requested without regard to membership in Local 80, or the lack thereof.

(9) Require periodic renewal of referrals to employment, if at all, only on a non-discriminatory basis, without regard to membership in Local 80 or lack thereof.

(10) Refer discriminatees James Patton, Robert Petit, Remo Gizzi, Almond Dumas, Paul Kaczmar and Kenneth Maddox to the next available employment.

(11) Notify in writing within 60 days of the issuance of this Order, all persons whom the Union has referred to employment in the past five years, and inform said persons that they are being considered for eligibility and that they may indicate whether...