National Labor Relations Board, Petitioner, v. Plumbers Union of Nassau County, Local 457, Unitedassociation of Journeymen and Apprentices of Theplumbing and Pipefitting Industry of Theunited States and Canada,afl-cio, Respondent, 299 F.2d 497 (2d Cir. 1962)

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US Court of Appeals for the Second Circuit - 299 F.2d 497 (2d Cir. 1962) Argued Jan. 18, 1962. Decided Feb. 6, 1962

Stephen B. Goldberg, Atty., N.L.R.B., Washington, D.C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associte Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Melvin J. Welles, Atty., N.L.R.B., Washington, D.C., on the brief), for petitioner.

Aaron Weissman of Delson, Levin and Gordon, New York City, for respondent.

Before MEDINA, MOORE and SMITH, Circuit Judges.

SMITH, Circuit Judge.


The National Labor Relations Board found Respondent, Plumbers Union of Nassau County, Local 457, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, had threatened and coerced neutral employers on a building construction job to cease doing business with Bady, the non-union plumbing contractor on the job, within the meaning of Section 8(b) (4) (ii) of the National Labor Relations Act, and with inducing or encouraging employees of neutral employers at the job to strike or refuse to perform services within the meaning of 8(b) (4) (i). The Board ordered respondent, its officers, etc., to cease and desist from these practices and to post appropriate notices, and now petitions this court for a decree enforcing in whole the order of the Board.

Enforcement ordered.

Searington Associates, Inc. and Shelter Rock Tennis Club, Inc., affiliated corporations, hereinafter referred to as Shelter Rock, undertook to build for their members a tennis and swimming club in Nassau County, New York. Shelter Rock contracted with various contractors for construction services on the job, all of which contractors were unionized but one, Bady d/b/a Bomat, the rough and finished plumbing contractor, at whose suggestion there was incorporated in his contract a provision that all labor supplied by Bomat should be non-union.

Mullen, an agent of the union, on visiting the job site March 28, 1960, learned there were no union plumbers on the job. He unsuccessfully sought to have Body's men join or to have Bady hire union members, threatening to 'knock off' the job and to have the union mechanics of other trades pulled off the job. Mullen talked to Rodriguez, president of Shelter Rock, telling him union plumbers would have to be employed or he would stop the job. Both Rodriguez and Mullen tried to obtain a compromise agreement from Bady but Bady refused. Mullen's threats to Body were heard both by other employers on the job and by some of their employees. March 30, 1960 the other workers walked off except for some electricians, who later ceased work. March 31, 1960 a picket for the union was placed at the only entrance to the job site, with a sign as follows:

TO THE

PUBLIC

THE PLUMBING

CONTRACTOR ON THIS

JOB EMPLOYS

NON-UNION PLUMBERS

& DOES NOT

HAVE A CONTRACT

WITH PLUMBERS LOCAL $457

The sign was later changed to read:

TO THE

PUBLIC

MEMBERS OF

PLUMBERS

LOCAL 457

ARE NOT EMPLOYED

ON

THIS JOB

Unfair labor practice charges were filed by Bady, a complaint issued, and application was made for an injunction. April 13, 1960 Judge Abruzzo suggested that the parties compromise. Body refused all suggestions. Picketing ceased April 14, the union mechanics returned to work the next day. April 20, 1960 Shelter Rock informed Bady that the finish plumbing work would be performed by union labor, either by Bomat or others. April 25, 1960 a temporary injunction issued. The union was unaware of the existence of the Bomat contract provision against employment of union labor until the Labor Board hearing May 16, 1960.

On these facts the trial examiner recommended dismissal of the complaint because of the 'non-union closed shop' provision in Bomat's contract, termed a 'yellow dog' contract. The Board disagreed, entered the order referred to above and seeks enforcement.

* The Board found, in accordance with the stipulation of the parties, that Bady was an employer and a person engaged in commerce. It is contended, however, that Shelter Rock and the subcontractors other than Bady were not shown to be in commerce or in an industry affecting commerce, as the Board found them to be. More specific evidence and findings were not essential under the facts of this case. Section 8(b) (4) (i) and (ii) of the amended Act extends to proscribed actions which are directed to 'any individual employed by any person engaged in commerce or in an industry affecting commerce'. While Shelter Rock, the country club, may not have been engaged in an industry affecting commerce, it was open to the Board to infer, from the stipulation as to Bomat's volume of business in commerce, and the nature of the construction job here, in the light of its experience in this field, that a work stoppage by all the building crafts on the job would substantially affect the flow of materials into the state for incorporation into the building under construction, and that consequently Shelter Rock, the general contractor, was so engaged. While than Bady may not have been shown to than Body may not have been shown to have been in commerce, a dispute stopping their work on the job is properly held to affect commerce. N.L.R.B. v. Denver Bldg. & Construction Trades Council, 341 U.S. 675, 71 S. Ct. 943, 95 L. Ed. 1284 (1951), International Broth. of Elec. Workers, etc. v. N.L.R.B., 341 U.S. 694, 71 S. Ct. 954, 95 L. Ed. 1299 (1951), Local 74 v. N.L.R.B., 341 U.S. 707, 71 S. Ct. 966, 95 L. Ed. 1309 (1951).

II

The threats to stop the job and to pull the other crafts off the job unless Bady capitulated, communicated to Shelter Rock and the other neutral employers, clearly violated 8(b) (4) (ii) (B) of the Act, as threats to 'any person' to force the cessation of business with Bady. N.L.R.B. v. International Hod Carriers, Local 1140, 285 F.2d 397, 403 (8 Cir. 1960), cert. denied 366 U.S. 903, 81 S. Ct. 1047, 6 L. Ed. 2d 203.

III

In view of Mullen's statements, that he was going to exert pressure on Bady, and that he was going to pull the men off the job, his association on the job site with the representatives of the other unions on the job, the simultaneous walkout shortly after Bady refused to cooperate, and the simultaneous return after Shelter Rock agreed to require Bady to comply, the Board was justified in its inference that Local 457 was responsible for inducing the employees of the neutral employers to engage in a work stoppage for the forbidden purpose of forcing Shelter Rock to terminate its contract with Bady unless he would contract with the union. N.L.R.B. v. Denver Bldg. & Construction Trades Council, supra, International Broth. of Elec. Workers, etc. v. N.L.R.B., supra.

IV

Respondent seeks to bring the picketing within Moore Dry Dock, 92 N.L.R.B. 547, as proper primary situs picketing. This effort, however, is unsuccessful, since the second sign carried by the pickets at the sole entrance to the job site utterly fails to identify Bady, the primary employer, as the target of the dispute. Condition (d) of the Moore formula is that 'the picketing discloses clearly that the dispute is with the primary employer.' 92 N.L.R.B. 547 at 549.

V

The union contends that the Board was in error in overruling the trial examiner's conclusion that the no-union clause in Bady's contract should bar relief before the Board. However, the clause was unknown to the union at the time of the union's illegal conduct, and so in no way induced it. Moreover, one illegality should not excuse another. N.L.R.B. v. Remington Rand, Inc., 94 F.2d 862, 872 (2 Cir. 1938). The public interest lies in labor peace, endangered by both. The remedy here was in the filing of charges before the Board when the claimed illegality came to light, not in illegal self-help. Superior Derrick Corp. v. N.L.R.B., 273 F.2d 891, 893 (5 Cir. 1960), cert. denied Seafarers' International Union, etc. v. N.L.R.B., 364 U.S. 816, 81 S. Ct. 47, 5 L. Ed. 2d 47. Nor can we agree that the existence of any illegality so taints the proceedings that the Board should have declined to consider them at all. Such a doctrine is properly confined to acts affecting the processes of the Board itself, as in Vaughn Bowen, 93 N.L.R.B. 1147, where the very initial hiring was part of a collusive plan to manufacture a case for Board action.

VI

The union contends alternatively that relief should be denied because the owner here, Shelter Rock, was an ally of Bady. This, however, ignores the interest of the other contractors, International Broth. of Elec. Workers v. N.L.R.B., 181 F.2d 34, 37 (2 Cir. 1950), aff'd 341 U.S. 694, 71 S. Ct. 954, 95 L. Ed. 1299, and in any event is not supported by the proof. Bady owned a share in Shelter Rock as a member amounting to 1/300th. He appears to have had no connection with its management or control. The offensive provision in the contract was inserted by Bady. No anti-union bias of Shelter Rock is shown, substantially all other contractors on the job being unionized. Indeed, far from taking Bady's part when the hiring of non-union labor on the job was questioned, Shelter Rock first tried to induce Bady to accede to the union demands, and promptly threw him overboard when he refused. There is here no intended or actual common cause or alliance on the part of Shelter Rock with Bady. No work of Bady's was 'farmed out' to Shelter Rock to avoid the effects of a strike.

VII

Finally, termination of the picketing, the walkout and the particular job itself do not render the Board's order moot. N.L.R.B. v. Pennsylvania Greyhound Lines, 303 U.S. 261, 271, 58 S. Ct. 571, 82 L. Ed. 831 (1938), Local 1976, Carpenters Union v. N.L.R.B., 357 U.S. 93, 97 note 2, 78 S. Ct. 1011, 2 L. Ed. 2d 1186 (1952), N.L.R.B. v. General Motors, 179 F.2d 221, 222 (2 Cir. 1950).

The order of the Board will be enforced.

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*The relevant provisions are as follows:

"RIGHTS OF EMPLOYEES

'SEC. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a) (3).

"UNFAIR LABOR PRACTICES

"SEC. 8. (a) It shall be an unfair labor practice for an employer-

"(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7;

'(3) 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: Provided, That nothing in this Act, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in section 8(a) of this Act as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 9(a), in the appropriate collective-bargaining unit covered by such agreement when made and (ii) unless following an election held as provided in section 9(e) within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement: Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership;

'(b) It shall be an unfair labor practice for a labor organization or its agents-

'(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any serivces; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is: (A) forcing or requiring any employer or selfemployed person to join any labor or employer organization or to enter into any agreement which is prohibited by section 8(e); (B) forcing or requiring any 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, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 9: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing; * * *

"PREVENTION OF UNFAIR LABOR PRACTICES

'SEC. 10. (a) The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 8) affecting commerce. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise: * * *

'(e) The Board shall have power to petition any court of appeals of the United States, * * * within any circuit * * * wherein the unfair labor practice in question occurred or wherein such person resides or transacts business, for the enforcement of such order and for appropriate temporary relief or restraining order and shall file in the court the record in the proceedings, as provided in section 2112 of title 28, United States Code. Upon the filing of such petition, the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction of the proceeding and of the question determined therein, and shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the Board. No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objections shall be excused because of extraordinary circumstances. The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive. If either party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearing before the Board, its member, agent, or agency, the court may order such additional evidence to be taken before the Board, its member, agent, or agency, and to be made a part of the record. * * * Upon the filing of the record with it, the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review by the * * * Supreme Court of the United States upon writ of certiorari or certification as provided in section 1254 of Title 28.'