NLRB v. Mountain Pacific Chapter of Assoc. Gen. Con.

• Decision Date: 28 August 1959
• Docket Number: No. 15966.,15966.
• Citation: 270 F.2d 425
• Parties: NATIONAL LABOR RELATIONS BOARD, Appellant, v. MOUNTAIN PACIFIC CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS, INC.; The Associated General Contractors of America, Seattle Chapter, Inc.; Associated General Contractors of America, Tacoma Chapter; International Hodcarriers, Building and Common Laborers Union of America, Local No. 242, AFL-CIO; and Western Washington District Council of International Hodcarriers, Building and Common Laborers Union of America, AFL-CIO, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

270 F.2d 425 (1959)

NATIONAL LABOR RELATIONS BOARD, Appellant, v. MOUNTAIN PACIFIC CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS, INC.; The Associated General Contractors of America, Seattle Chapter, Inc.; Associated General Contractors of America, Tacoma Chapter; International Hodcarriers, Building and Common Laborers Union of America, Local No. 242, AFL-CIO; and Western Washington District Council of International Hodcarriers, Building and Common Laborers Union of America, AFL-CIO, Respondents.

No. 15966.

United States Court of Appeals Ninth Circuit.

August 28, 1959.

Jerome D. Fenton, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Duane B. Beeson, William J. Avrutis, Attys., N.L.R.B., Washington, D. C., for petitioner.

Louis Sherman, Cornelius Gray, William J. Brown, Washington, D. C., for Building & Construction Trades Dept., AFL-CIO, intervenor.

Elliott, Lee, Carney & Thomas, Seattle, Wash., for Mountain Pacific Chapter of Associated Gen. Contractors of America.

Lycette, Diamond & Sylvester, Lyle L. Iversen, Seattle, Wash., for Associated Gen. Contractors of America, Seattle Chapter, Inc., and Associated Gen. Contractors of America, Tacoma Chapter.

L. Presley Gill, Seattle, Wash., and Vincent Morreale, Washington, D. C., for Union respondents and petitioners.

Before FEE and JERTBERG, Circuit Judges, and YANKWICH, District Judge.

JAMES ALGER FEE, Circuit Judge.

Lewis, a colored hodcarrier, had almost twenty years' experience in servicing bricklayers and plasterers. He was dropped from union membership in 1949 by Building and Common Laborers Union of America, Local No. 242, AFL-CIO, for nonpayment of dues. Lewis applied for work at the hiring hall maintained by this Union and in effect embraced by a contract entered into between Mountain Pacific Chapter, Seattle Chapter and Tacoma Chapter, Associated General Contractors of America and Western Washington District Council of International Hodcarriers, Building and Common Laborers of America, AFL-CIO, in behalf of Local 242 and other Unions and the employers and organizations of employers who are defendants here.

There was a well established policy of the Union, during the time these contracts were negotiated and afterward, that the dispatcher should do all in his "power to procure employment for such brothers of the hiring hall Union members as may desire situations in preference to any and all nonunion men."

After Lewis had been dropped for nonpayment of dues, both before and after the present renewal of the contract had been executed by the parties, he was consistently refused work at the hiring hall maintained by this Union.

With this history, after the present extension of the contract above referred to had been effectuated, Lewis applied for employment at the hiring hall consistently during March, April and May of 1956. He repeatedly sought and failed to secure dispatch on the ground that there was then a slack season for hodcarriers. Upon many such occasions, hodcarriers were dispatched from the hiring hall, some repeatedly.

Lewis, during this time, made consistent effort to be reinstated in the Union and offered to pay dues. Officers of Local 242 refused upon the ground that "there weren't any jobs" and that the Union "would not take on any new members."

Lewis filed three charges with the National Labor Relations Board after these incidents. First, he charged the Local on May 11, 1956. This action followed immediately after Lewis had secured a job not through the hiring hall, but independently. One of the officials of the Local threatened to place a picket line around the job unless Lewis was discharged. Thereupon, he was fired.

After the filing of the documents, officials of the Local refused to dispatch him, in the attempt to get him to dismiss the complaints. Varying the tactics, upon several occasions he was dispatched to a job with the suggestion, express or implied, that he withdraw the charges. He was visited on a job by Union officials who insistently questioned him as to his attitude with regard to the withdrawal of these complaints.

After much of this course of conduct, Lewis filed a charge against the Chapters also on August 7, 1956. Thereafter, he secured work through the hiring hall with substantial regularity. However, the pressure to have the charges withdrawn was continued insistently by officials of the hiring hall and the Local. All attempts of Lewis to join the Local were frustrated, and all tenders of dues were refused.

The third charge was thereupon filed against the District Council on September 13, 1956. The Board consolidated the three charges, and General Counsel issued complaint based thereon on September 20, 1956. The trial examiner found the facts above recited, among others, and held the Local had violated the Act.¹

The Board held that the Chapters and the District Council had likewise violated the Act by discrimination against Lewis.² This holding was predicated upon the entry of the contract between these organizations whereby hiring provisions of that contract were illegally maintained in effect, and, since there were no clauses therein prohibitory of discrimination, the implementation of the unlawful contract in the rejection of the continuous applications of Lewis for employment was an unfair labor practice.

Although the Board found certain facts relative to the relationship of the parties and the contract, the ultimate holding was one of law. It ruled the contract was illegal because of the exclusive hiring hall provision which is therein contained. We hold this position is erroneous.

So far as the position of the Unions is concerned, we do not agree with any of the criticisms of the findings of the trial examiner and the Board. For the purposes of disposition of the petition of the Board for enforcement, we deal only with two questions presented by the Unions. These questions are: Is the hiring hall clause per se illegal? and next: Will any discriminatory implementation of a hiring hall provision without protective clauses be chargeable to the parties to the written contract?

It is clear enough that the treatment accorded Lewis was not brought about by the express provisions of the contract. The hiring hall could have been operated legally without discrimination against anyone, and the terms of the contract would still have been fulfilled. The Board decides that the contract is illegal, not because of what it says, but on account of those things which it does not say and which the order of the Board requires to be interpolated.³

The defense of the Chapters consists of complete detachment and naivete. The cardinal points are five: (1) The Chapters are not employers. (2) They have nothing to do with the hire, discharge or employment of men under the contract, and the managers of the Chapters actually had no direct knowledge of what their members did with respect to the hiring of men. (3) The Chapters had consistently advised their members that, in the hiring of employees, they were not to discriminate with respect to employment. (4) The members had not employed any men through the hiring hall and, particularly, there was no discrimination against Lewis on any job controlled by a member. Finally, they contend that the Chapters did not advise their members to obtain employees exclusively through the hiring hall and the members frequently did hire men from other sources.

As to all these contentions except the first, there is a plain answer. Even if it be assumed that these positions are sustained by proof in the record, such proof would not compel a finding that the Chapters did not participate in an agreement to discriminate. The Board should, of course, consider such proof, if any, as that might be significant in the determination of whether there was or was not such an agreement.

Of course, no legal defense would be presented to a charge that the Chapters deliberately entered into a contract with the Unions in this form set out for the purpose of discriminating against Lewis or other persons similarly situated. If the facts had been so found, none of these contentions would have had any effect. As to the first contention, there is no doubt the Chapters entered into the contract. They were then "employers" within the meaning of the Act, which provides:

"The term `employer\' includes any person acting as agent of employer directly or indirectly * * *." 29 U.S.C.A. § 152(2).

"It shall be an unfair labor practice for an employer * * * by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization * * *." 29 U.S.C.A. § 158(a).

These Chapters were held to be "employers" by the trial examiner and the Board.

In a case where the discriminatory provision was embodied in the written contract between the Employers Association and the Union, the Association was held liable by the Board as an "employer" although the discrimination was actually carried out in accordance with the contract by a member of that group. This Court enforced the order of the Board. National Labor Relations Board v. E. F. Shuck Construction Co., 9 Cir., 243 F.2d 519, 521. It is there said:

"There is no doubt that an employer\'s association such as the respondent A.G.C., Seattle Chapter, one of the parties herein which negotiates collective bargaining contracts on behalf of its members who engage in interstate commerce is an employer for the purpose of enabling the Board to order it not to maintain a provision of a contract affecting commerce which violates the Act."

The finding that the Chapters were employers is affirmed.

If the provisions which the Board now promulgates had been included in the contract, the parties might still have intended to violate and might have in fact violated the law. The elimination of clauses which expressly provided for preference to union...