Local No. 5, United Ass'n of Journeymen & Apprentices of Plumbing & Pipe Fitting Industry v. National Labor Relations Board

321 F.2d 366
CourtCourt of Appeals for the D.C. Circuit
DecidedJune 6, 1963
DocketNo. 17130
StatusPublished
Cited by8 cases

This text of 321 F.2d 366 (Local No. 5, United Ass'n of Journeymen & Apprentices of Plumbing & Pipe Fitting Industry v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Local No. 5, United Ass'n of Journeymen & Apprentices of Plumbing & Pipe Fitting Industry v. National Labor Relations Board, 321 F.2d 366 (D.C. Cir. 1963).

Opinion

BASTIAN, Circuit Judge.

This case is before the court on a petition to review and set aside an order of the National Labor Relations Board. The Board, in its answer, has requested enforcement of the order.

The facts of the case are as follows: On November 30, 1959, the Arthur Ven-neri Company [Venneri], a general contractor, was awarded a construction contract by the United States Corps of Engineers to build two airplane hangars at Andrews Air Force Base, Maryland. Venneri then subcontracted the inside plumbing work to Akron Mechanical Contractors, Inc. [Akron] and the outside utilities to Nickles Bros., Inc. [Nickles], an excavating contractor, which had a bargaining agreement with the Hod Carriers, Building and Common Laborers Union of America. After it had been awarded the subcontract, Akron entered into a bargaining agreement with petitioner, Local Union No. 5, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, [368]*368AFL-CIO [Local 5], to obtain union plumbers for the construction of the hangars. That agreement contained a clause which reads, in pertinent part:

“32. It shall be a violation of this agreement for any contractor to contract for a job where plumbing work has been withheld from the plumbing contract by either the owner or general contractor for the purpose of being installed by other than journeymen plumbers and their apprentices. * * * ”

After the bargaining agreement was signed, Local 5 learned that Akron had accepted only inside plumbing work. Forthwith, it claimed jurisdiction over both the inside and the outside plumbing, objecting to Akron’s acquiescence in the assignment of some of the plumbing work to Nickles, since installation of any plumbing by Nickles would violate clause 32 of the bargaining agreement. To further its claim, Local 5 refused to refer plumbers to work on the hangar jobs; and it induced Akron’s employees to refrain from working on these projects, not to move pipe en route to the hangars, nor to fabricate pipe destined for these buildings. These actions both the Board and the trial examiner found violated § 8(b) (4) (i) and (ii) (B) of the Labor Management Relations Act, as amended.1 We think the Board’s determination has ample support in the record.

Respondent’s argument rests on a triangular base. To sustain its findings the Board admits there must be substantial evidence in the record that (1) Local 5 induced the employees of Akron and threatened or coerced Akron (2) in order to affect the employment policies of an employer other than Akron (in this case Venneri), (3) one purpose of which was to force Akron to stop doing business with Venneri or, in the alternative, to force Venneri to stop doing business with Nickles. We shall consider these elements in reverse order.

First, the evidence is clear that Local 5 wanted one of two resolutions of this dispute: Either it wanted Akron to stop doing business with Venneri, or it wanted Venneri to stop doing business with Nickles. The record indicates that the union would not supply plumbers to Nickles, refusing to have anything to do with that employer. In addition, there is evidence that Local 5 would not do business with any excavating contractor. In view of this attitude, there is no way that the provisions of clause 32 could be followed while both Akron and Nickles remained on the plumbing job.

Since Venneri had entered into contractual relations with both Akron and Nickles by the time this controversy arose, we have no occasion to consider the union’s interesting argument that it sought “to force Akron to ‘refrain’ from doing business with Venneri,” an object which it urges is permitted by the wording of the statute. In the present controversy it is clear that the union sought to [369]*369force Akron to cease doing business with Venneri or, in the alternative, to force Venneri to cease doing business with Nickles.

The record also indicates that the real target of the union’s conduct was the subcontracting policy of Venneri. The union warned Venneri in December 1959, apparently before Akron was in the picture, not to split the plumbing work, and reminded the contractor of previous trouble they had experienced on this point. The union also warned Grossman, the president of Akron, before the bargaining agreement was signed, that accepting work from Venneri might mean trouble. Furthermore, the discussion at the meeting on February 15, 1960, between Local 5, Akron and Venneri clearly showed that the union’s primary concern was with Venneri’s subcontracting policies and not with the policies of Akron.

Buttressed by a persuasive record, the Board further relies on N. L. R. B. v. Enterprise Association, etc., 285 F.2d 642 (2d Cir., 1960) and Local 636, etc. v. N. L. R. B., 108 U.S.App.D.C. 24, 278 F.2d 858 (1960). Both of these cases reflect a situation similar to the present one, for in both the union brought pressure on a subcontractor who was powerless to settle the dispute, as is Akron here, in order to affect the purchasing policies of a general contractor. The only significant difference in this case is that the union attempted to influence the subcontracting policies of the general contractor, rather than its purchasing policies. There is nothing in the statute to indicate that this difference should produce a dissimilar result, for in both cases we have a secondary boycott.2

The union’s principal reliance is on clause 32 of the contract, which we assume, arguendo only, is a legal contractual provision. On the basis of this clause, the union makes a two-pronged argument.

First, the union contends this clause demonstrates that its real dispute was with Akron, and not with Venneri, for it shows that the union’s object was to change the employment policies of the immediate employer. The union presses on us a fine example of the non sequitur. Clause 32 no more demonstrates that the real target of the union’s pressure was Akron than a “hot cargo” clause in the contract forbidding Akron to purchase non-union material would show that the union’s dispute was with Akron, rather than its suppliers.3 The subcontracting prohibition in Enterprise and the restriction on off-site fabrication in Local 636 do not demonstrate that the dispute was with a party to the contract. As we said in Local 636:

“The question is whether the contract provisions in question extend beyond the employer and are aimed really at the union’s difference with another employer.” 108 U.S.App.D.C. at 30, 278 F.2d at 864.

There is ample evidence in this case to show that the contract provision here in question was really aimed not at Akron, but at the union’s difference with Ven-neri over the latter’s subcontracting policies.

The second argument of the union is that, if clause 32 is a valid prohibition designed to preserve jobs or job content,4 then the union can take the [370]*370measures here employed to enforce it. The Board correctly counters with the argument that Sand Door5 disposes of this suggestion.

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321 F.2d 366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/local-no-5-united-assn-of-journeymen-apprentices-of-plumbing-pipe-cadc-1963.