UNITED BROTHERHOOD OF CARPENTERS, ETC. v. NLRB

• Citation: 109 US App. DC 249,286 F.2d 533
• Decision Date: 15 December 1960
• Docket Number: No. 15502.,15502.
• Parties: UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

109 US App. DC 249, 286 F.2d 533 (1960)

UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 15502.

United States Court of Appeals District of Columbia Circuit.

Argued September 22, 1960.

Decided December 15, 1960.

Bernard Dunau, Washington, D. C., for petitioners.

Duane B. Beeson, Atty., N. L. R. B., of the bar of the Supreme Court of California, Washington, D. C., pro hac vice, by special leave of court, with whom Dominick L. Manoli, Associate Gen. Counsel, N. L. R. B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., and Richard J. Scupi, Atty., N. L. R. B., Washington, D. C., were on the brief, for respondent.

Thomas J. McDermott, Associate Gen. Counsel, N. L. R. B., Washington, D. C., also entered an appearance for respondent.

Before EDGERTON, WASHINGTON and DANAHER, Circuit Judges.

EDGERTON, Circuit Judge.

Petitioners are the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and some of its district councils and locals. They ask us to set aside an order of the National Labor Relations Board¹ based on alleged violations of §§ 8(b) (1) (A), 8(b) (2) and 8(b) (4) (A) of the National Labor Relations Act, as amended, 61 Stat. 141 (1947), 29 U.S.C.A. §§ 158(b) (1) (A), 158(b) (2), 158(b) (4) (A). The Board asks enforcement of its order.

Endicott Church Furniture, Inc., contracted to install pews in churches at five separate sites. General carpentry work at each site was done by employees affiliated with petitioner unions, whose policies as expressed in the by-laws and working rules of the district councils forbade members to work with nonunion carpenters. The conduct found illegal occurred when nonunion employees of Endicott attempted to install the pews.

I. Section 8(b) (4) (A).

This subsection of the National Labor Relations Act makes it "an unfair labor practice for a labor organization or its agents — * * * (4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring * * * any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person." § 8(b) (4) (A), 61 Stat. 136, 141 (1947), 29 U.S.C.A. § 158(b) (4) (A).

A majority of the Board found violations at Minneapolis, Minnesota, by Local 7 and Twin City District Council; at Hopkins, Minnesota, by Local 889 and Twin City District Council; and at Royal Oak, Michigan, by Local 998 and Wayne District Council.²

1. Minneapolis. After inquiring of Endicott's employees and learning they were nonunion, one Jaeger, a carpenter foreman on the job and a member of Local 7, so informed a carpenter and other craftsmen. When Local 7's business agent Erickson stopped at the job site Jaeger asked him what to do, was told to continue work and did so. Erickson called in Carlgren, business agent of Twin City District Council. Carlgren afterwards told Newstrum, a member of the church building committee, that the work could not be completed if the nonunion men remained on the job. But it was finally agreed that union and Endicott employees would share the work. There was no stoppage.

The Board found that Jaeger's "comment to the men about the nonunion status of the Endicott carpenters was, under these circumstances, a reminder of their duty not to work with nonunion men, and constituted unlawful inducement whether or not an actual work stoppage ensued", and that Jaeger and Local 7 therefore violated § 8(b) (4) (A). It found that the Twin City District Council was equally responsible, "in view of its by-laws requiring Jaeger to act as he did"³ and the conduct of the business agents who "approved" and "implemented" Jaeger's conduct "by prevailing upon those in authority at the project to reassign part of the work to union men."

Section 8(b) (4) (A) "describes and condemns specific union conduct directed to specific objectives * * Employees must be induced; they must be induced to engage in a strike or concerted refusal * * *." Local 1976, United Brotherhood of Carpenters and Joiners of America v. National Labor Relations Board, 357 U.S. 93, 98, 78 S.Ct. 1011, 2 L.Ed.2d 1186. United Wholesale and Warehouse Employees, Local 261 v. National Labor Relations Board, 108 U.S. App.D.C. 341, 282 F.2d 824, 827. It has been held that unsuccessful inducement may be a violation of the Act. Highway Truck Drivers & Helpers Local 107, etc. v. National Labor Relations Board, 107 U.S.App.D.C. 1, 4, 273 F.2d 815, 818; National Labor Relations Board v. Denver Bldg. & Construction Trades Council, 10 Cir., 193 F.2d 421; National Labor Relations Board v. Laundry, Linen Supply & Dry Cleaning Drivers Local 928, 9 Cir., 262 F.2d 617. But there is no evidence that the present petitioners even tried or wished to cause a stoppage. Even if, as the Board found, Jaeger's comment to the contractor's employees was "a reminder of their duty not to work with nonunion men", in the light of other evidence it does not show that he tried to induce a strike. He neither stopped work nor advised any one else to stop. He sought Erickson's advice and Erickson, by telling him to continue work, showed that Local 7 did not intend to cause a stoppage. We find no substantial evidence of a violation of § 8(b) (4) (A) at Minneapolis.

2. Hopkins. Hovland, a member of the Twin City District Council, was carpenter foreman at this project and on the critical day was acting superintendent for the general contractor. It is not disputed that Hovland induced a work stoppage by telling employees the Endicott men were nonunion and he was quitting, and urging employees to quit. The question is whether he acted for the council or for the contractor. The Board found that the council's working rules bound Hovland, under penalty of fine, not to work with nonunion carpenters or permit men he supervised to do so.⁴ It concluded "in view of all the circumstances" that Hovland "subordinated his management duties" and acted for the council. Substantial evidence supports this inference.

In Carpenters District Council of Milwaukee County, etc. v. National Labor Relations Board we set aside a Board finding that a union-member foreman acted for the union when he informed his men of a union order. We did so because the finding was based solely on the "presumed effect" of the foreman's union duties. We thought § 2(3) of the Act, which excludes from the term "employee" any "individual employed as a supervisor", was intended "to give the employer a free hand to discharge foremen as a means of insuring their undivided loyalty, in spite of any union obligations." We held that in "the absence of any evidence to the contrary, we should assume that this employer prerogative has had the effect which Congress contemplated" and that a foreman would not "ignore his role as a representative" of his employer "and become merely a `medium of transmission'" of union orders. 107 U.S.App. D.C. 55, 57, 274 F.2d 564, 566. In the present case the Board's finding was not based solely on the presumed effect of the foreman's union duties. One of the circumstances the Board considered was that Hovland, on learning that the Endicott men were nonunion, promptly quit work and asked others to do so. Petitioners point to a provision in the general contractor's agreement with the council that employees may refuse to work on a job where nonunion men are doing work within the union's jurisdiction. But this does not refute the Board's inference that Hovland was not acting for the contractor.

The Board also found that Local 889 violated § 8(b) (4) (A) when Linde, its business agent, urged employees to stop work. Substantial evidence supports this finding.

3. Royal Oak. Here Sievertsen, the general contractor's superintendent and a member of Local 1433, "raised the question of the Endicott employees' * * * union status with Campbell, the carpenter steward, Bubar, a carpenter, and some laborers, and asked Campbell to check on the matter." Campbell reported their nonunion status "to Sievertsen and the others". Sievertsen and others decided to call Local 998. Sievertsen called and asked a business agent "to come and check the job". Business agents Jacobs, Fair and Pinner came. When Jacobs asked if the Endicott men were nonunion, Sievertsen replied, "That's your department, that's why I called you". Sievertsen told a truck driver that "there might be a picket line around the church" next day, and in that case he would let the driver know not to report for work. There was a conflict in testimony, not resolved by the Trial Examiner or the Board, as to whether a work stoppage occurred.

The majority of the Board concluded that Local 998 violated § 8(b) (4) (A) in that (1) Campbell engaged in inducement by telling the contractor's employee the Endicott men were nonunion and (2) business agent Pinner (a) told the employees they had to stop work and (b) participated in "the unlawful sequence of events initiated by Sievertsen". We find that the evidence that Pinner told the contractor's employees they had to stop work is not substantial. The Board found the council jointly responsible for the local's violations, and guilty of independent violations in that Sievertsen, who was "exercising the authority vested in him by the Council rules", (a) "induced and encouraged" an unlawful work stoppage and (b) instigated and acquiesced in the conduct of Campbell and Pinner.

The Board found that council work rules governing foremen applied to Sievertsen, that they obligated him to enforce council policy against working with nonunion men, and that he ...