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National Labor Relations Board v. Interboro Contractors Inc.

decided: December 22, 1967.


Lumbard, Chief Judge, Smith, and Feinberg, Circuit Judges.

Author: Lumbard


This case comes before us by petition of the National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, for enforcement of an order issued against respondent on March 31, 1966. 157 NLRB No. 110. The Board determined that respondent had violated Section 8(a) (1) of the Act by discharging two employees, John and William Landers, for engaging in activities which were protected under the Act; respondent was ordered to cease and desist from the unfair labor practice found and to grant the Landers reinstatement and back pay. The question presented to this court is whether there was substantial evidence to support the Board's findings that the Landers' presentation of complaints about respondent's alleged violations of the collective bargaining contract was concerted activity protected under Section 7 and that these complaints were the reason for the discharges. We conclude that the Board's findings are supported by substantial evidence on the record considered as a whole and enforce the Board's order.

The testimony at the hearing before the trial examiner revealed the following facts. On March 23, 1965, brothers John and William Landers were hired over the telephone by respondent's president Kleinhans to work as steamfitters on a construction project at Tratman Avenue in the Bronx. According to John, Kleinhans said that it would be an "8-hour job" and would pay "expense money";*fn1 Kleinhans testified that he did not give any such promises.

When they arrived at the jobsite on March 25, the Landers brothers met Novak, who was also employed by respondent as a steamfitter. John found that Novak had been working without a partner for several days while Koster -- the foreman and Novak's partner -- had been absent because of sickness; the collective bargaining contract and the New York City Fire Regulations require that steamfitters work in pairs.

A short while later Soebke, respondent's supervisor, arrived at the jobsite. John asked him about the "8-hour job" and "expense money." Soebke answered that the Landers would have to speak to Kleinhans about this.

Soebke assigned John to do some welding and William to do some other work. The Landers refused to work separately, claiming that the contract required them to work together. John pointed out to Soebke that Novak had been working without a partner and expressed doubt that Novak was an "A-man" qualified to work as a steamfitter.*fn2 John also said that he was going to get the union business agent to visit the jobsite. Soebke then assigned both Landers to work together and left the site. John afterwards called the union business agent.

On the following day, Koster returned and John repeated the complaints to him. John also told Koster of his conversation with Kleinhans concerning the overtime and expense money; Koster confirmed Soebke's statement that Kleinhans rarely appeared at the jobsite. John made one phone call to Kleinhans' office in order to discuss the 8-hour day and expense money, but he was unable to reach Kleinhans.

The same day, the union business agent arrived at the site and heard John's complaints. The agent told Koster that the men were to work in pairs and that another steamfitter would be sent to replace Novak, who was not an "A-man"; he also ordered Koster before the executive board of the union for a briefing on a foreman's duties. John also had claimed that a prefabricated boiler which was being delivered to the jobsite violated the contract.*fn3 Koster confirmed that a prefabricated boiler was being delivered; the agent said that he would look into the matter when the boiler arrived.

On the same day, March 26, John requested Koster to supply him with protective leather equipment and Koster agreed to do so.*fn4 John testified that, despite his repeated requests and Koster's repeated promises, he never received the equipment. Kleinhans testified that the requested equipment was provided, but John claimed that only one set was ever provided and that was used by Collins, another employee.

On March 29, the union business agent called Kleinhans and told him of the investigation and the action taken. Kleinhans asked who had made the complaints; the agent answered that it was irrelevant. Kleinhans then said that it looked like he had a couple of "troublemakers" on the job.

On March 30, Kleinhans came to the jobsite and John, with William in attendance, asked about the 8-hour job and expense money. Kleinhans said he could see no reason for it, but might consider the request later.

On Friday, April 2, Soebke paid the employees for the work through the previous Tuesday. The Landers and Collins complained that the contract required that they be paid through Wednesday.*fn5 After a discussion and a threat by John that the three of them would notify the union and would wait at the site until they received the money, Soebke agreed to bring the extra day's pay on Monday.

The prefabricated boiler arrived on April 7 and John called the union, after he found that Koster did not intend to do so, in order to have the boiler inspected. Eventually, a union business agent did discuss the matter with ...

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