Schauffler v. UNITED ASSOCIATION OF JOURNEYMEN, ETC.

• Decision Date: 06 March 1956
• Docket Number: No. 11690-11692.,11690-11692.
• Citation: 230 F.2d 572
• Court: U.S. Court of Appeals — Third Circuit
• Parties: Bennet F. SCHAUFFLER, Regional Director of the Fourth Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, v. UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL 420, AFL; Aloysius McHenry; John Small. United Association of Journeymen & Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 420, AFL, Appellant. Aloysius McHenry, Appellant. John Small, Appellant.

230 F.2d 572 (1956)

Bennet F. SCHAUFFLER, Regional Director of the Fourth Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, v. UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL 420, AFL; Aloysius McHenry; John Small.

United Association of Journeymen & Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 420, AFL, Appellant.

Aloysius McHenry, Appellant.

John Small, Appellant.

Nos. 11690-11692.

United States Court of Appeals Third Circuit.

Argued February 9, 1956.

Decided March 6, 1956.

Rehearing Denied April 26, 1956.

Richard H. Markowitz, Philadelphia, Pa. (Louis H. Wilderman, Wilderman & Markowitz, Philadelphia, Pa., on the brief) for appellants.

Winthrop A. Johns, Washington, D. C. (Theophil C. Kammholz, General Counsel, David P. Findling, Associate General Counsel, William W. Kapell, Attorney, National Labor Relations Board, Washington, D. C. on the brief), for appellee.

Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.

GOODRICH, Circuit Judge.

This is an appeal from a judgment for contempt rendered at the instance of the Regional Director on behalf of the National Labor Relations Board against United Association of Journeymen (pipe fitters) and two of the officers of Local 420.¹ The court gave judgment against the union for $1,000 and against the officers for $200 each. Their appeals were combined in one argument and will be disposed of in one opinion.

The basis of the contempt charge was alleged disobedience of an injunction rendered against this union pursuant to the provisions in § 10(l) of the National Labor Relations Act, 29 U.S.C.A. § 160(l). The propriety of the injunction was upheld by this Court in Schauffler v. United Association of Journeymen, 1955, 218 F.2d 476. The injunction, drawn in terms of § 8(b) (4) (D) of the Act, enjoined Local 420 and its agents from future work stoppages or their inducement

"* * * where an object thereof is to force or require Frank W. Hake, Day & Zimmerman, Inc., or any other employer or association of employers in the Philadelphia area, to assign the rigging work on any equipment, pipe, or material to employees who are members of respondent, rather than to employees who are members of or represented by Riggers & Machinery Movers Local Union 161, unless said employer or association of employers is failing to conform to an order or certification of the Board determining respondent to be the bargaining representative for the employees performing such rigging work."

We feel no doubt that work stoppages took place in at least five different instances and that this union through its officers induced them and induced them for the purpose of forcing an assignment of work to members of Local 420 as against members of Riggers & Machinery Movers Local 161. The instances have to do with jobs at Smith, Kline & French Laboratories, Lord and Taylor, Allied Stores, Warwick Hotel and Snellenburg's. Not only is the fact of the pressure by Local 420 clearly established but its business manager, Mr. McHenry (one of the defendants here), freely admitted the exertion of such pressure in at least three of the instances just mentioned.

The important part of the case becomes the argument which the defendants have made to show that this conduct did not violate the injunction. The first and probably easiest point to dispose of is that there was no strike or concerted refusal to work. The argument is that in several of the instances complained of only one member of Local 420 refused to go to work on material handled by Riggers under orders from his local. One man can not make a "concerted refusal", the argument is, and N. L. R. B. v. International Rice Milling Co., 1951, 341 U.S. 665, 71 S.Ct. 961, 95 L.Ed. 1277, is cited. But in that case there was one instance involving one man. Here we have at least five cases; in one of them two men were involved and in another at least six. And here, too, we have a cumulative series of instances which explain why only one man was sent to some of these jobs. His employer intelligently did not send a crew until he found out whether any of his employees would be permitted to go to work.

Second, the defendants claim exemption from contempt liability under the "escape clause" of the injunction which excepted from its prohibition the instances where "said employer * * * is failing to conform to an order or certification of the Board determining respondent to be the bargaining representative for the employees performing such rigging work." This, too, is easily disposed of conclusively, we think, by the decision of this Court in Schauffler v. United Association of Journeymen, cited above. The Court points out that the pipe fitters were at no time the certified representatives of employees doing rigging work, 218 F.2d at page 481. And see also the Labor Board decisions in 108 N.L.R.B. 186, 198 (April 9, 1954); 109 N.L.R.B. 854, 858 (Aug. 17, 1954); 112 N.L.R.B. No. 147 (1955).

A more complicated question is presented by the defendants' argument that they were protecting their rights secured by contract and that such action does not involve contempt. A short answer to the contention might well be that if there were any rights accruing to them out of a contract they came from an agreement made subsequent to the injunction and the proper procedure would have been to ask the court for a modification in view of subsequently arising facts.²

We do not need to stop with this rather peremptory answer, however, because there is no substance to the argument based on alleged contracts.³ First, both the contract and a "memorandum of understanding" referred to, expressly prohibit stoppages over work assignments. Again, Hake, the employer of members of Riggers 161, was the employer authorized to make assignments⁴ and there was no contractual right against Hake by Local 420. And third, the rigging contractor, Hake, did what the so-called memorandum of understanding and its reference to memorandum of October 8, 1953, required. Hake made inquiries of the officers of Local 420 concerning the assignment practice in the area and Local 420 gave him no answer whatever.

Finally, the appellants say that they have not intentionally violated the court's injunction and that such intent to defy the authority of the court is an essential element of contempt.

So far as the civil aspect of the contempt charge goes it need give us no trouble. The court's order was violated and that seems to...