Carpenters District Council of Detroit v. National Labor Relations Board

285 F.2d 289

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 8, 1960
• Docket: No. 15604
• Status: Published

Opinions

BURGER, Circuit Judge.

The petitioner asks us to set aside and the respondent asks us to enforce an order of the National Labor Relations Board which rested on findings that petitioner violated Sections 8(b) (2) and 8(b) (1) (A) of the National Labor Relations Act as amended, 29 U.S.C.A. § 158 (b) (1) (A), (2), by causing employers to discriminate unlawfully in hiring practices. We have jurisdiction under Sections 10(e)'and (f) of the Act.

The Board’s order requires petitioner to cease and desist from causing or attempting to cause the employer, W. J. C. Kaufman Company, or any other employer, to discriminate against employees or applicants for employment by requiring them to obtain work permits, clearances or job referrals from petitioner as a condition of employment or from in any like or related manner restraining or coercing employees or prospective employees of Kaufman Company or any other employer in the exercise of rights under Section 7 of the Act. Additionally, petitioner is required to make restitution to a particular job applicant, one Bissonnette, for loss of wages because of unlawful discrimination against him, and to post specified notices.

Bissonnette, who was a member' of Local 1373 of the United Brotherhood of Carpenters and Joiners, a local not affiliated with petitioner District Council, applied for employment on a job site where the Kaufman Company was engaged in a construction project. Harrison, a foreman who had hiring authority, told Bissonnette that he had a job for him. Harrison, although a foreman, was a member of a carpenters’ local affiliated with the petitioner. The record shows that Bissonnette from past experience as a union member believed that a work permit was required. When Bissonnette expressed his understanding that he needed a work permit from petitioner before going to work, Harrison gave him until noon to obtain a permit and sent him to Rogers, the union steward on the job site. Bissonnette’s testimony was, “He [Harrison] said that I should get a permit and be back here by noon and he would put me to work at noon.” The union steward, who is an elected official of petitioner’s local, then told Bissonnette he could get his work permit at the local union office in Mt. Clemens. The constitution of the carpenters’ union and the working rules of the District Council, petitioner here, require that a member of an unaffiliated, i. e., a “foreign” local obtain a work permit in order to work in petitioner’s jurisdiction. Prior to this episode however, petitioner had instructed its members in union meetings not to apply these rules so as to discriminate in employment against members of non-affiliated locals. That suspension of the constitution was not known to Bissonnette when he applied or to Harrison when he acted on the job application. No evidence is shown that petitioner communicated its suspension of enforcement of these provisions to its members except at union meetings.

Bissonnette, acting on the information of the union steward as to where permits were issued, went to the local union office in Mt. Clemens as directed. He testified that he was told they “couldn’t issue no permits there. It was too near the district council,” and that he “would have to go into Detroit to the District Council.” Following these directions, he went to Detroit where he was told that “they weren’t issuing any permits. That the Carpenters were on strike,” and that “there is too many men out of work here” and “it would look bad if he issued me a permit * * Bissonnette then returned to the job site and reported to Harrison that he could not get a work permit and understood he could not go to work without it. Harrison, according to Bissonnette’s testimony, said he “was sorry” and there was “nothing he could do about it.” When asked whether he felt that Bissonnette needed a permit, Harrison answered, “Yes, I didn’t say so. It wasn’t necessary for me to specify that he did. * * * ” Harrison also testified that “to the best of [his] knowledge” he followed the working rules and the union constitution.¹ He also acknowledged that he worked “in conjunction with the steward in an effort to uphold the trade rules.”

It was against this background the Trial Examiner found that the petitioner had violated Section 8(b) (2) of the Act through Harrison’s exercise of his hiring authority in accordance with the union constitution and working rules. He found that in the context of their common understanding of the union constitution, the implication of the conversations between Harrison and Bissonnette must have been that Bissonnette was not eligible for employment without a permit. He also found that the petitioner was responsible because its working rules imposed a duty on Harrison as a foreman to uphold these rules. However, he found that so far as the proof went the Bissonnette episode was “an isolated and accidental application” of petitioner’s rules by Harrison. The Examiner seems to have accepted petitioner’s claim that its members had been instructed at union meetings not to apply rules so as to cause discrimination, but he found that this did not relieve petitioner of responsibility for Harrison’s conduct since “he was acting within the scope of his apparent authority under the Working Rules. * * ” The Board found that Harrison’s action relating to Bissonnette “fell within the contemplated scope of the authority and responsibility” placed on him by petitioner and that petitioner had failed to communicate to Harrison the policy of suspending the enforcement of the constitution which modified his actual authority. In these circumstances, the Board held, Harrison “thus remained cloaked with apparent authority, if not actual authority, to act on behalf * * * ” of petitioner.

The questions presented to us are:

(a) Was Bissonnette refused employment because he did not have a work permit ?

(b) If so, was petitioner responsible for this discrimination?

(e) Is the scope of the Board’s order too broad in view of the findings and evidence?

d).

Section 8(b) (2) of the Act as amended makes it an unfair labor practice for a union “to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3)” which in turn declares it an unfair labor practice for an employer “by discrimination in regard to hire * * * to encourage or discourage membership in any labor organization.”

In National Labor Relations Board v. International Bhd. of Boilermakers, 2 Cir., 232 F.2d 393, certiorari denied 1956, 352 U.S. 909, 77 S.Ct. 148, 1 L.Ed.2d 118, the court held it was a violation of Sections 8(b) (2) and (1) (A) of the Act for a union to cause four union members to be refused employment because they were not members of the particular local union which had jurisdiction over the job site. Judge Lumbard’s concurring opinion, in which Judge Waterman joined sustaining the Board finding of violation of the statute, discloses the similarity of the facts to those presented in the instant case:

“Hagan [company foreman] told Smith and Marin that since they were Lodge 23 members and did not have Building Trades Quarterly cards they would havé to get the approval of District 2 headquarters. At 14th Street headquarters field representative Graber told them that the Astoria jobs were being held for District 2 members.” 232 F.2d at page 396.

See also National Labor Relations Board v. Local 542, Int’l Union of Operating Engineers, 3 Cir., 1958, 255 F.2d 703.

The petitioner urges that the facts do not show Bissonnette was refused employment but on the contrary that his loyalty to union principles led him to pass up the job tender of his own volition rather than violate an internal union rule. This is a strained and strange interpretation of the evidence before the Examiner and the Board. Bissonnette applied for a job and was assured a job subject only to securing a work permit which he erroneously assumed was indispensable. Harrison sent Bissonnette to the steward; the steward, Rogers, told him to go to the Mt. Clemens office of the union; the Mt. Clemens office sent him into Detroit. At each point Bissonnette was frustrated and “bucked” to the next by the very union officers who were looked upon by him as people who were supposed to help him get work. It is not surprising that he was pushed to say, finally, that he might as well “tear up” his union credentials.

The suggestion that the union sought only and narrowly to appeal to the loyalty and conscience of each union member to comply with work permit provisions is tenuous at best. The unsophisticated working carpenter could hardly be expected to discern this subtle distinction. No reason appears why we should not accept the Trial Examiner’s evaluaton just as the Board did. The whole record abundantly supports the finding that union representatives acting for petitioner conveyed to Bissonnette the “message” that no work permit meant no work, and this was consistent with the “message” which Harrison by acts and utterances in his first, as in his final conversation, conveyed to Bissonnette. See National Labor Relations Board v. Cement Masons, 9 Cir., 1955, 225 F.2d 168.

(2).

The Board held petitioner responsible for Harrison’s conduct on the ground that the constitution and the working rules imposed responsibility for rules enforcement on the foreman, who was required to be a member of the union. There is nothing ambiguous or equivocal about the Board’s finding on the issue of responsibility; nor does it lose any of its vitality by reason of subsequent expressions of the Board on the same general subject. Our dissenting colleague relies on the Board’s statement that Harrison “remained cloaked with apparent author-ity, if not actual authority” disregarding the earlier finding that Harrison’s conduct “fell within the contemplated scope of the authority” placed on him by petitioner. Thus we do not go beyond the limits permitted by Securities and Exchange Comm’n v. Chenery Corp., 1943, 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626, in sustaining the Board’s action.

It is conceded by the union that the constitution and rules contained the provisions, which if superimposed on the hiring authority, constituted a violation of Sections 8(b) (2) and (1) (A). Cf. National Labor Relations Board v. Millwrights’ Local 2232, 5 Cir., 1960, 277 F.2d 217 petition for certiorari filed, 29 U.S.L. Week 3048 (U.S. July 11, 1960) (No. 229). There is no evidence of any kind that any limitation or suspension of the constitution and rules was communicated to Harrison and there is persuasive evidence from his utterances and acts that he was not aware of any limitation.

Uncommunicated union limitations on the scope of working rules do not operate to limit a foreman’s authority or the union’s responsibility. National Labor Relations Board v. Cement Masons, supra.

The case of Carpenters District Council of Milwaukee County and Vicinity of United Broth, of Carpenters and Joiners of America, A.F.L.-C.I.O. v. National Labor Relations Board, 1959, 107 U.S.App. D.C. 55, 274 F.2d 564, relied on by the petitioner, does not aid its position. There the majority held that absent evidence to the contrary, the foreman was presumed to act on behalf of the employer. Here the authority exercised by the foreman was obviously on behalf of the employer since it was hiring authority, but it was exercised under the dictates of the petitioner’s constitution and working rules. The foreman exercised this hiring authority, not according to instructions from the employer but according to commands of the union constitution. No suggestion is made that the employer had a policy of hiring only union members or that he required work permits.

Viewing the record as a whole there is ample evidence to support a finding that petitioner was responsible for the actual enforcement by Harrison, as foreman, of the union constitution and working rules so as to deprive Bissonnette of employment.

(3).

The order is attacked by petitioner on the ground that it applies not only to the Kaufman Company but to “any other employer” and to practices committed in “any like or related manner.” In light of the Examiner’s finding that the Harrison-Bissonnette episode “at most, is proof only of an isolated and accidental application” of the constitution and working rules, the scope of the Board’s order is difficult to understand.² National Labor Relations Board v. Express Publishing Co., 1941, 312 U.S. 426, 433, 61 S.Ct. 693, 698, 85 L.Ed. 930, tells us that “the authority conferred on the Board to restrain the practice which it has found * * * to have [been] committed is not an authority to restrain generally all other unlawful practices which it has neither found to have been pursued or persuasively to be related to the proven unlawful conduct.”

However, it appears that no objection to the scope of the order was made before the Board. Exception was taken to -the recommended order “insofar as * * * based on materials previously excepted to.” But these exceptions all related to findings on discrimination and agency. There were no findings as to the scope of the order; only the terms of the order describe its scope. Thus the exception taken “did not apprise the Board that petitioner intended to press the question now presented.” Marshall Field & Co. v. National Labor Relations Board, 1943, 318 U.S. 253, 255, 63 S.Ct. 585, 586, 87 L.Ed. 744.

Petitioner argues that even absent objection before the Board this court now has power to modify the order in this respect. We think not. Several circuits seem to have held the reviewing court may so act because the enforcement order is the order of the court, not the order of the Board. See National Labor Relations Board v. Local 111, United Bhd. of Carpenters, 1 Cir., 1960, 278 F.2d 823; National Labor Relations Board v. Brand-man Iron Co., 6 Cir., 1960, 281 F.2d 797. The Sixth Circuit appears to have relied upon Mr. Justice Stone’s concurring opinion in National Labor Relations Board v. Cheney California Lumber Co., 1946, 327 U.S. 385, 66 S.Ct. 553, 90 L.Ed. 739. Circuit Judge Cecil dissenting in the Brand-man case relies on the majority view in the Cheney case and his premise would seem to be correct. This is also the view of the Second Circuit. National Labor Relations Board v. Combined Century Theatres, Inc., 2 Cir., 278 F.2d 306.

In National Labor Relations Board v. District 50, UMW, 1958, 355 U.S. 453, 78 S.Ct. 386, 2 L.Ed.2d 401, the Supreme Court set aside the action of this Circuit which modified a Board order by changing the wording of a notice, saying that no “extraordinary circumstances” were shown to bring the case within the exceptions allowed under the controlling statute defining the scope of review. See also Federal Power Commission v. Colorado Interstate Gas Co., 1955, 348 U.S. 492, 497-501, 75 S.Ct. 467, 99 L.Ed. 583. Petitioner neither claims nor describes any extraordinary circumstances which would appear to warrant our now modifying the scope of what might seem to be an order which goes beyond the needs of the case. We do not read Express Publishing or similar cases in the Supreme Court as do the First and Sixth Circuits. We read those cases as precluding modification of the order by us unless the party challenging the order shows that he is within the exception of the rule; appellant has not done so. The order of the Board will be enforced.

Affirmed.

1 . “Q. I ask you if this is the by-laws and working rules which you indicate you abide by? A. Those are the working rules I work by, yes.

“Q. And the constitution, General Counsel’s Exhibit Number 3, is that the constitution which you abide by? A. We operate by the constitution.” (Emphasis added.)

2 . Petitioner’s failure to raise this point to the Board is similarly puzzling. The Intemg.di.ate Report plainly put petitioner on notice 'with respect to the scope of the recommended order, and the Board adopted the recommendation.