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National Labor Relations Board v. Employing Bricklayers' Association of Delaware Valley

June 19, 1961


Author: Kalodner

Before KALODNER, STALEY and HASTIE, Circuit Judges.

KALODNER, C.J.: This is a petition of the National Labor Relations Board pursuant to Section 10(e) of the National Labor Relations Act, as amended, to enforce its Order issued against the respondents in proceedings under Section 8(a) of the Act.*fn1

The first named respondent, Employing Bricklayers' Association of Delaware Valley and Vicinity ("Association") is an association consisting of various masonry contractors in the metropolitan Philadelphia area. One of Association's principal purposes is to bargain collectively, via a committee, with various labor unions representing the employees of its constituent members. The remaining respondents are masonry contractors in the Philadelphia area. With the exception of Joseph Liberati they are all members of Association.

Local No. 1, Bricklayers' International ("Union"), is the bargaining representative of the respondent bricklayers' employees.

On January 10, 1959, Union held an election of officers, including president, vice-president, business representative, and members of the conference or bargaining committee and the grievance committee. Officers and supervisory employees of the respondent employers, who were dues-paying members in good standing of Union, and had participated in its affairs, voted at the January 10th election. As a result of their doing so, a series of charges were filed with the Board. Following an investigation the Board issued its complaint and conducted a hearing before a Trial Examiner who found that the record did not sustain a finding of a statutory violation and recommended that the complaint be dismissed. The Board, on review, found that the respondents had interfered with the administration of Union within the meaning of Section 8(a)(2) and (1) of the Act, and issued a Cease and Desist Order to the respondent, which provided in part as follows:

"1. Cease and desist:

(a) From interfering with the administration of Local 1, Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO by participating through their officers, owners and management representatives in voting at union elections of officers and members of its various committees, or by participating otherwise in internal administration of the said labor organization."

On this petition for enforcement of its Order the Board urges that it properly found that respondents violated Section 8 (a)(2) and (1) of the Act by participating in the election of union officers and bargaining representatives.

Able counsel for the respondents here concedes that the Board's Order "is proper to the extent that it prohibits supervisors from voting at union elections where members of the bargaining committee, or the grievance committee, or business representative are to be chosen", but vigorously contends "that the Board's Order should not prohibit members of the union in good standing from voting for officers and members of committees, and otherwise participating in the internal administration of Local 1, where the voting and participation does not pertain to the collective bargaining process, or to the wages, hours and working conditions of the union's members."

In making this contention, respondents' counsel urges that the record does not offer "the slightest intimation that the affairs of the Local were administered other than for the good of the membership", and that there is no contention by the Board "that the conduct of these employer representatives in voting actually produced an adverse effect."

In graphic summation of the "sweep" of the Board's Order, respondents' counsel says:

"Basically, the Board employs in this case a meat-ax approach where a scalpel is indicated. Such a broad, sweeping Order as the Board issued here is necessitated only where a drastic remedy is needed to rectify evil or unhealthy situations. . . . In this case, there is not a single line of testimony in the entire record which permits the slightest inference of improper conduct."

The contentions stated bring into sharp focus the critical issue as to the extent to which rights of union members may be limited by the Board, viz., disenfranchisement, in effectuating the "clear legislative policy to free the collective bargaining process from all taint of an employer's compulsion, domination, or influence." International Ass'n of Machinists v. NLRB, 311 U.S. 72, 80 (1940).

It must be said at this point that the Board in its Decision and Order noted that "The General Counsel does not contend that the Union is an employer dominated or assisted labor organization, or that it is not the majority ...

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