NLRB v. UNITED ASS'N OF J. & A. OF PLUMBING, ETC., LOCAL 633, 19711.

• Decision Date: 08 April 1970
• Docket Number: No. 19711.,19711.
• Citation: 424 F.2d 390
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPEFITTING INDUSTRY OF the UNITED STATES AND CANADA, LOCAL 633, AFL-CIO, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

424 F.2d 390 (1970)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPEFITTING INDUSTRY OF the UNITED STATES AND CANADA, LOCAL 633, AFL-CIO, Respondent.

No. 19711.

United States Court of Appeals, Sixth Circuit.

April 8, 1970.

Ira M. Goldberg, N. L. R. B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Abigail Cooley Baskir, Atty., N. L. R. B., Washington, D. C., on the brief), for petitioner.

Charles R. Isenberg, Louisville, Ky., (Irwin H. Cutler, Jr., Segal, Isenberg, Sales & Stewart, Louisville, Ky., on the brief), for respondent.

Before PHILLIPS, Chief Judge, WEICK and EDWARDS, Circuit Judges.

EDWARDS, Circuit Judge.

In this case the National Labor Relations Board petitions for enforcement of its order against Local 633 of the plumbers union. The board found that Local 633 violated section 8(b) (1) (A) and (2) of the National Labor Relations Act, 29 U.S.C. § 158(b) (1) (A), (b) (2) (1964), by causing certain nonmembers of the union either to be laid off or to be denied employment by certain employers within the union's jurisdiction, and by maintaining a discriminatory hiring hall, giving preference to members of Local 633.

The findings of the Board (affirming those of the Trial Examiner) are as follows:

"* * * Respondent union * * * sought and obtained the layoff of Joseph Tabor and revoked the work permit of Albert Harned because these men were not members of Respondent. This conduct was engaged in to obtain work for Respondent\'s members, Manion and Todd, at the Chicago job site. Heath\'s own testimony makes clear that Respondent caused Tabor\'s layoff and revoked Harned\'s work permit because they were not members of Respondent. The credited testimony of James Todd and Eldridge Milam supports the General Counsel\'s contention that Keller, Hargan, Kaysinger, Petree were laid off because of Heath\'s demand and because they, like Tabor and Harned, had to make room for members of Respondent. Keller\'s layoff at Ford also falls into the familiar pattern of conduct followed by Respondent with the slight modification that Keller\'s job was sought for Nixon Scott, a member of the International Union working on a travel card in Respondent\'s jurisdiction, who thus had preference for jobs over Keller who was not a member of Respondent or any of Respondent\'s sister locals. I cannot attach any significance to Respondent\'s contention that the positions obtained for the laid off employees by the Respondent were temporary and as journeymen, with more experience and seniority, became available, the laid off employees would be `rolled.\' The evidence is clear that Respondent maintained a practice of giving union members preference over nonunion employees. Respondent\'s reliance on Keller\'s testimony that `when older men or older members come to take your job you have to give your place up and let them have it because they got seniority on you\' is misplaced. It is clear from Heath\'s own testimony that seniority had nothing to do with job acquisition and retention but rather that union membership was the test."

The Board seeks enforcement of an order requiring Local 633 to cease and desist from the discriminatory practices found above and to make the discriminatees whole by backpay.

At the hearing before the Trial Examiner, the union took the position that it had not occasioned any of the discharges or refusals of jobs with which the Board's order dealt. While the facts were clearly in dispute before the Trial Examiner, he found (and the Board affirmed his findings) that Local 633 did occasion the discriminatory practices referred to. On this whole record, we find substantial evidence to support the findings of the Trial Examiner and the Board.

Before this court the union also takes the position that even if it had occasioned the discharges or refusal of jobs, it had a right to do so under section 8(f) of the Act, the construction trades' proviso, which states:

"(f) It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organization of which building and construction employees are members (not established, maintained, or assisted by

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