National Labor Relations Board v. Northern California District Council of Hod Carriers & Common Laborers of America

389 F.2d 721, 67 L.R.R.M. (BNA) 2502, 1968 U.S. App. LEXIS 8287
CourtCourt of Appeals for the Ninth Circuit
DecidedJanuary 25, 1968
DocketNo. 21569
StatusPublished
Cited by1 cases

This text of 389 F.2d 721 (National Labor Relations Board v. Northern California District Council of Hod Carriers & Common Laborers of America) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Labor Relations Board v. Northern California District Council of Hod Carriers & Common Laborers of America, 389 F.2d 721, 67 L.R.R.M. (BNA) 2502, 1968 U.S. App. LEXIS 8287 (9th Cir. 1968).

Opinion

HAMLIN, Circuit Judge.

The National Labor Relations Board petitions this court pursuant to section 10 (e) of the National Labor Relations Act (29 U.S.C. § 160(e)) for enforcement of its order issued on September 21, 1965 (reported at 154 N.L.R.B. 1384), against respondents Northern California District Council of Hod Carriers and Common Laborers of America, AFL-CIO, and Construction and General Laborers Union Local No. 185, AFL-CIO. The Board found that respondent Union had violated sections 8(b) (4) (i) and (ii) (B) of the Act, and ordered respondent to cease and desist from these unfair labor practices and to post appropriate notices.

The dispute here involved took place at the construction site of a multi-million dollar residential complex at Rocklin, California. Sunset International Petroleum Corporation (Sunset) is the general contractor, but as such had no employees working directly for them. Sunset had entered into a contract with respondent in which it had agreed to hire only unionized sub-contractors (a valid agreement under the proviso to section 8(e) of the Act). Sunset did, however, engage Joseph Mohamed (doing business as Joseph’s Landscaping Service), a nonunion sub-contractor, to do various landscaping jobs on the project. Mohamed, in turn, sub-contracted part of his work to King Brothers, a union employer.

From February 13, 1963, to March 1, 1963, Mohamed worked without incident on the project. Beginning March 1, however, representatives of respondent came to the construction site and indicated to Mohamed and to Sunset that either Mohamed sign a union agreement or get off the job, or there would be trouble. As a result of these threats a meeting was called for March 5th, and an attempt was made to work out the difficulties. Mohamed was present at this meeting, but did not participate because his counsel failed to show up. Respondent made it clear that if Mohamed was to stay on the job he must sign the respondent’s “standard agreement.” Mohamed did not, due to the absence of his attorney, make a statement whether or not he would sign, and so the meeting was continued until the following day. By that time Mohamed had consulted with his attorney and had indicated that it was his intention not to sign. Sunset then made it clear that Mohamed would be kept on the job “until such time as the Unions took action wherein there would be delays or curtailments or strikes.” Respondent replied, “If that is your position then the Unions will retire and we will take whatever action we deem advisable.”

The very next day respondent placed pickets at the two major entrances of the construction project. Sunset asked Mohamed to take his men off the job, he did so, and the pickets were removed. As a result of this picketing Mohamed filed an unfair labor practice charge against the respondent. However, the parties subsequently entered into a settlement agreement which was approved by the Regional Director on April 30.

On May 7, 1963, respondent resumed its picketing at the two entrances of the construction site. The picketing continued for three days at the two main entrances only, despite the fact that a special entrance had been established for Mohamed and his employees. Finally, in an effort to end this labor trouble, Sunset met with the respondent. Respondent agreed to stop picketing and to let Mohamed complete his job in return for Sunset’s reaffirmation of its agreement to hire only union contractors and subcontractors, and its dropping of an unfair labor practice charge it had filed two days earlier.

[724]*724Respondent here alleges that the Board should not have found them to be in violation of the Act for two reasons: (1) The Board improperly considered pre-set-tlement activity; (2) there is not substantial evidence to support a finding that respondent engaged in any activity which was not directed at the primary employer.

DID THE BOARD PROPERLY CONSIDER THE PRE-SETTLEMENT ACTIVITY?

Prior to this case, the Board had established a policy that it would not look behind a settlement agreement unless it appeared that there had been a breach of such agreement, or that the unfair labor practices had continued notwithstanding the settlement. The clearest statement of this policy is found in W. Ralston & Co., 131 N.L.R.B. 912, 917 (1961), where the Board said:

“It is well settled that continuing violations of the Act will breach a settlement agreement involving unfair labor practices and will justify the Regional Director in vacating the agreement and in proceeding with a complaint which covers unlawful conduct both before and after the agreement. However, findings of unfair labor practice can properly be made on the earlier conduct only where there is evidence of substantial unlawful conduct following the settlement agreement, for evidence of isolated and minor incidents will not justify the Board in going behind the agreement. Moreover, in determining whether independent unfair labor practices have occurred after a settlement, the Board will not appraise a Respondent’s subsequent conduct in light of its conduct prior to the settlement.”

See Eveready Garage, Inc., 126 N.L.R.B. 13 (1960); Larrance Tank Corp., 94 N.L.R.B. 352 (1951); Midwest Piping & Supply Co., 63 N.L.R.B. 1060 (1945).

In this case, however, the Board has expressly rejected this policy and held that it will consider pre-settlement activity to establish the “object” of post-settlement conduct. Respondent challenges the wisdom of this policy change. While there may be some merit to respondent’s contention that the Board’s new policy will discourage parties from settlement of their labor disputes, this appears to be a matter for the Board and not the courts to decide. Respondent cites no authority, and in fact doesn’t even assert, that the Board cannot make such a change. Authority supports its right to do so. See NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 73 S.Ct. 287, 97 L.Ed. 377 (1953); International Brotherhood of Operative Potters v. NLRB, 116 U.S.App.D.C. 35, 320 F.2d 757 (1963); NLRB v. A.P.W. Products Co., 316 F.2d 899 (2d Cir. 1963). Congress has reposed in the Board the power to fashion rules governing settlement agreements. 29 C.F.R. §§ 101.7, 101.9 (1967). Quite clearly the procedural effect of such an agreement is within its domain. Moreover, in Wallace Corp. v. NLRB, 323 U.S. 248, 65 S.Ct. 238, 89 L.Ed. 216 (1944), the Supreme Court apparently sanctioned the type of decision made by the Board in the instant case. There the question was whether or not the Board could ever consider preset-tlement activity. The Court said:

“It is contended that the Board’s finding as to company domination has no support in the evidence because the evidence as to company domination antedated the settlement and certification, and hence was improperly admitted. The argument is that the Board cannot go behind the settlement and certification.

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389 F.2d 721, 67 L.R.R.M. (BNA) 2502, 1968 U.S. App. LEXIS 8287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-labor-relations-board-v-northern-california-district-council-of-ca9-1968.