Petition for Enforcement of an Order of the National labor Relations Board. Petition for Review of an Order of the National Labor Relations Board.
Before BAUER, Chief Judge, CUMMINGS and EASTERBROOK, Circuit Judges.
CUMMINGS, Circuit Judge. This action is before us on the application of the National Labor Relations Board ("the Board") to enforce its order finding that Local 644 of the Laborers' International Union of North American ("the Union") had engaged in unfair labor practices in violation of §§ 8(b)(1)(A) and (2) of the National Labor Relations Act ("the Act"). The Union has cross-applied for review and asks us to set aside the Board's order. For the reasons set forth below, we enforce the Board's order.
Kellerman Brothers Construction Company ("the Company") is a member of the Southern Illinois Builders Association ("SIBA") which negotiates collective bargaining agreements on behalf of its members. The Company has never assigned its bargaining rights to SIBA, but it has always signed the bargaining rights to SIBA, but it has always signed the bargaining agreements negotiated by SIBA and the Union on an individual basis. These agreements provide for the Union's operation of an exclusive hiring hall through which employers are to hire their employees. Both Union members and non-members alike have the right to register with the Union and sign a referral list. The Union then refers out employees in the order of their signing the list without regard to Union membership. Employers who are signatories to the bargaining agreement may request the referral of a limited number of specific employees, "key men," regardless of their position on the list.
In August 1984, the Company requested that the Union refer Jack Jones, a Union member, to replace an employee who had left the Company. The Union agreed to refer Jones as a "key man," even though Jones was not at the head of the referral list. Jones, however, refused the referral, and the Company sought to hire Joseph Baker, a non-member of the Union.
In early September Company president Albert Kellerman and Baker visited the Union's business manager, Donald Moore, at the Union's business office. Kellerman informed Moore that he wanted to employ Baker and asked him to accept Baker's payment of an initiation fee for union membership, allow Baker to register with the Union and sign the referral list, and then refer Baker to work for the Company as a "key man." According to the testimony of Kellerman and Baker, Moore refused Kellerman's request, claiming that there were too many out of work Union members already on the referral list. Moore later added that he might accept Baker's initiation fee if Baker were not employed on the Holts Prairie Baptist Church site. As this was the Company's only major construction project, Kellerman rejected the offer.
Following the September meeting, Moore attempted to locate a copy of the Company's executed collective bargaining agreement. Although he testified that he was certain that the Company had executed an agreement, Moore was unable to find the signed copy in the Union's files. he proceeded to deliver unsigned copies of the bargaining agreement and the participation agreement, which provided for the deduction of benefit payments of employees, to Richard Pressman, a union steward working for the Company. Moore instructed Pressman to have Kellerman sign the documents on behalf of the Company. Kellerman signed the participation agreement, but refused to sign the bargaining agreement until the Union accepted Baker into its membership. Moore thereupon informed Kellerman that the Union would picket the Company's jobsites if Baker went to work for the Company.
On September 24, 1984, Baker began working at the Church construction site. The Union established picket lines at each of the Company's jobsites with signs stating that the Company was not a signatory to the bargaining agreement.
On September 27, 1984, Moore sent Kellerman a letter, enclosing a memo which had been signed by the Union's executive board. The memo read:
Al Kellerman signed participation agreement but will not sign contract until Labor Local 644 takes Joe Baker into local 644. All executive board members present vote to keep pickets up on Al Kellerman, and not let Joe Baker into labor local 644.
Moore concluded the letter by saying, "Let's forget Baker, you sign and we will build the Church."
Kellerman met with Moore at the Company's U.S. Gypsum worksite on October 3, 1984. Kellerman told Moore that he was willing to sign the bargaining agreement, but that he would not lay off Baker. Kellerman then handed Moore a signed copy of the bargaining agreement. Moore responded by telling Kellerman to "get Joe Baker out of there and we will go back to work." Kellerman took Baker off the site and the picketing ceased. The next day Kellerman drove Baker to the Church site where he needed another laborer. Union steward Pressman, who was working at the site, informed Kellerman that if Moore saw Union laborers working with Baker, he would "jerk them off the job and put up a picket line." Kellerman therefore removed Baker from the jobsite. When Moore later arrived at the site, Pat Kellerman, Albert's son who was also a carpenter working on the site, overheard Moore tell two laborers that he was not going to sell Baker a Union card and that if Albert Kellerman brought Baker back to the site, they should hit him on the head with a two-by-four.
On October 5, 1984, Baker met with Moore in a final attempt to join the Union or at least to sign the referral list so that he could be assigned to work for the Company. Moore again refused and told Baker that he could let whomever he wanted into the Union and there was no way he was going to sell Baker a card. Moore further replied that there were already fifty names on the referral list. When Baker questioned him about his selling a card to ...