Before DUFFY, Chief Judge, FINNEGAN and SCHNACKENBERG, Circuit Judges.
SCHNACKENBERG, C.J.: The National Labor Relations Board, herein called the Board, petitions us to enforce its order to February 5, 1958, issued against respondents*fn1 in an unfair labor practice proceeding.
Early in 1956, John Sexton and Co. engaged J. Emil Anderson and Son, Inc., to build an addition to its plant. Anderson subcontracted the major construction work to Fruin-Colnon Contracting Company and subcontracted certain tank work to Wendnagel & Company, including the manufacture and erection of an outside wooden tank. Fruin-Colnon employs members of Carpenters Local 60, a respondent, herein called the Carpenters; Wendnagel is under contract with Local 67 of the Coopers International Union of North America, AFL-CIO, and employs members of that union, herein called the Coopers.
The contract between Wendnagel and the Coopers does not assign and is not an agreement to assign the disputed work (erection of tanks or towers) to members of the Coopers. Rather, it provides that in localities where the Coopers have no membership the disputed work may be carried on with such men as are available, with union preference, provided one member of the Coopers is employed.
Wendnagel's principal plant is in Chicago, Illinois. The work dispute arose in Indianapolis, Indiana. It is not denied that the Wendnagel employees assigned to the disputed work were employees of Wendnagel in Chicago. There is no evidence that the Coopers had any members in the locality of Indianapolis.
On April 10, 1956, Wendnagel's employees began to erect an outside wooden tank. Paul Bear, steward of Carpenters Local 60 and a carpenter employee of Fruin-Colnon, telephoned the local's business agent, Chester A. Bereman, and asked him to investigate the job because Wendnagel was installing the tank without carpenters. Bereman promptly came to the job site, looked the tank over, and then telephoned Cecil Shuey, representative of respondent Carpenters' International. Acting pursuant to Shuey's instructions, Bereman then told Wendnagel foreman Charles Wawak that the work on the tank belonged to the Carpenters. Wawak offered to do the job with a composite crew of carpenters and coopers but Bereman, after further advice from Shuey, rejected the compromise and stated that, if the Coopers went on the job, the Carpenters would not work at the job site. Bereman then instructed steward Bear to pull the Carpenters off the job the next morning if the Coopers resumed work on the tank.
Bereman also told Pierson, vice-president of Fruin-Colnon, of the Carpenters' decision to quit work unless given the tank job.Pierson and Bereman then drove to the office of Shuey who reiterated that the Carpenters would not work alongside the Coopers. Pierson transmitted this information to the prime contractor, Anderson, who in turn urged Wendnagel to straighten the matter out so that the employees of Fruin-Colnon, members of the Carpenters, would not be pulled off the job. Later that day, Wendnagel's attorney, John T. Van Aken, called Shuey and repeated foreman Wawak's earlier offer to compromise the dispute by hiring carpenters to work with Wendnagel's coopers. He reminded Shuey that past disputes between the Carpenters and the Coopers had been so handled. Shuey insisted, however, that except for supervision, the work had to be done exclusively by carpenters. The next morning, April 11, the Coopers resumed work on the wooden tank and steward Bear ordered Fruin-Colnon's carpenters off the job.
Sometime between April 11 and April 18, 1956, R. R. Smith, president of the respondent Carpenters' District Council, offered to call off the strike if certain millwright work on the job site was given to members of the Carpenters. Nothing came of this offer and on April 17, the Carpenters received notice of the unfair labor practice charges filed by Wendnagel in this case. Thereupon, pursuant to advice from Shuey, Bereman and Smith directed steward Bear to put the Carpenters back to work. The Carpenters reported for work the next morning and the Coopers completed the tank work.
Respondents in this Court contend that the record establishes that respondents' object in removing members of respondent Local 60 employed by Fruin-Colnon from their jobs was to obtain assignment of the disputed work by Wendnagel to members of respondent Local 60 and further that there is no evidence in the record of any other object of respondents, and in particular there is no evidence that respondents had as an object the replacement of Wendnagel as a subcontractor on the job.
The unfair labor practice charges filed in April 1956 alleged that respondents and their named agents had violated Section 8(b)(4)(D), the "jurisdictional disputes" section, as well as Section 8(b)(4)(A), the "secondary boycott" section, of the Act.
Pursuant to the statutory scheme for the handling of jurisdictional disputes, the Board in June 1956 held the hearing prescribed by Section 10(k) "to hear and determine the dispute" out of which the charge of a Section 8(b)(4)(D) violation arose.
On the basis of the foregoing facts, the Board found that the record "does not show that Wendnagel's assignment of the wooden tank work was in contravention of any Board order or certificate; nor does it show that the Carpenters had any bargaining contract with Wendnagel which would entitle the Carpenters to represent such employees", and that, on the contrary, "Coopers, whose members were employed by Wendnagel, was under contract with Wendnagel as the recognized bargaining representative for these employees."
Under the heading "Merits of the Dispute", the Board said that it is "well established that an employer is free to make work assignments without being subjected to pressures proscribed by Section 8(b)(4)(D), 'unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work.'"
The Board's decision reads in part, as follows:
"We therefore find that the Carpenters was not entitled by means proscribed by Section 8(b)(4)(D) to force or require Wendnagel to assign the disputed work to ...