Distinguished
Distinguished by Lewis v. Quality Coal Corporation, 270 F.2d 140 (1959)
We further agree with Fentress that cases such as N.L.R.B. v. Gottfried Baking Co., 2 Cir., 210 F.2d 772; N.L.R.B. v. Gaynor News Co., 2 Cir., 197 F.2d 719 and Red Star Express Line of Auburn v. N.L.R.B., 2 Cir., 196 F.2d 78 are distinguishable.
Distinguished by Lewis v. Quality Coal Corp., 270 F.2d 140 (1959)
We further agree with Fentress that cases such as N. L. R. B. v. Gottfried Baking Co., 2 Cir., 210 F.2d 772; N. L. R. B. v. Gaynor News Co., 2 Cir., 197 F.2d 719 and Red Star Express Line of Auburn v. N. L. R. B., 2 Cir., 196 F.2d 78 are distinguishable.
The opinion
L. HAND, Circuit Judge (dissenting).
The letter of August 2, 1948 may be paraphrased as follows without violence to its meaning: “Until the courts decide what the Labor Management Relations Act means as to any clause in our contract of 1944 which is 'affected’ by that act we agree to treat such a clause, as though it was not in the contract.” That, I submit, meant that until the courts decided otherwise, the “closed shop” clause was to be deemed not in the contract; for there is no dispute, I take it, that the “closed shop” clause in the contract was “affected” by the act. Maybe my brothers think otherwise; but in any event, I understand them to say, that even though, as a matter of contract, the addendum did eliminate the “closed shop” clause, its effect, when coupled with the original contract, was so equivocal that an employee would not know whether or not the parties had agreed to a “closed shop,” and that this uncertainty made the contract an unfair labor practice, since it enabled both the employer and the union to discriminate against a nonunion man under § 8(a)(3) and tended to force him to join the union under § 8(b)(4)(A). I should altogether agree, if the union and the employer had suppressed the addendum in order to deceive employees into believing that the parties were still working under a “closed shop” agreement; but I cannot agree, if, although they drew their contracts in an *82 honest effort to conform to the law, they drew them so inartificially that the meaning was not clear. Everyone will agree that the inept draughting of a contract cannot be an unfair labor practice.
The Board found that “the parties deliberately used the vague language of the addendum to eliminate disagreement among themselves as to which clauses were affected.” That is true, but it gives no color for supposing that they were combining to bemuse any employees, present or future. The Board next found that the addendum was not intended to remove the “coercive effect of the unlawful union-security provision” because the parties did not “notify the employees of the existence of the addendum”; and because “the union hiring hall and union-determined seniority * * * continued to be followed ¡by the parties.” It is true that the addendum was not sent out to the employees, and it is of course possible that' this was done because the parties wished to suppress it, and to give the employees to understand that the “closed shop” was still in force; but I can find no substantial evidence to support that finding. DePerno, the president of Local 182, swore that after the agreement was made he went back to Utica and “immediately turned the settlement over to the girls in the office to mimeograph and push out to all the locals in the state.” Shortly thereafter the president of the employers association called him up and asked him: “What about the Taft-Hartley law that we agreed that you were going to put in there?” DePemo’s testimony continued that that was “the first time I realized that it wasn’t in there even though we had agreed and what causes (caused) the error was the fact that we had the mediator’s decision or the settlement which I turned over to the girl and didn’t give her the other sheet of paper that we settled amongst ourselves as regards the law.” In reply to Durkin’s inquiry he asked whether, having sent out the notices, he had “got to get them all back and destroy them and throw them away, or what?” They finally agreed De-Perno should send Durkin a letter which Durkin should sign and send back, because “all decisions come through both Councils.” I can find no contradiction of this anywhere in the record, and in the absence of any indication that the trial examiner discredited DePerno, it seems to me that we should accept his testimony. That would seem to follow from the decision in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474 , 71 S.Ct. 456 , 95 L.Ed. 456 . If so, there is no support whatever in the evidence for the conclusion that the failure to notify the employees was owing to a desire to make them suppose that the parties were still working under a “closed shop.”
The Board’s' second finding is that there was evidence that in fact the parties continued the “closed shop.” This my brothers do not expressly affirm and as I understand, they do not accept it. At any rate, it appears to me not to be “supported by substantial evidence on the record considered as a whole.” Weaver, the association’s manager, and DePerno both swore that the parties had not followed the “closed shop” thereafter, and the only contrary evidence was that of Mullen, the employee, upon whose charge the proceeding was started. It is true that he was not discharged until March, 1949, and it would therefore be possible to read his testimony as covering a period after August, 1948. The substance of what he said was as follows: “Q. Well, who would determine how many dock men were needed at night? A. Well, Hassett would call the hall before five o’clock? * * * Well, if he needed help he would call the union hall and they would come to work. * * * Q. In other words the company hired the extra men from the union hall? A. Yes, * * * Q. So if there was need for extras after five o’clock you wouldn’t have hired him (sic) because the union hall was closed, is that right ? A. That is right.”
The examiner did not, it is true, credit Weaver upon another issue; but it does not follow that he did not believe him on this point and at least he gave no indication that he discredited DePerno’s testimony that after the addendum was signed Local 182 made no “attempt to enforce the union security” (“closed shop”) “provisions of the contract.” In the face of these denials *83 it does not seem to me that Mullen’s testimony about the “closed shop” should prevail ; it was not fixed in time and may well have referred to what was the practice before August 2, 1948. Hence I can find no reason to sustain the conclusion that the parties were trying to enforce a “closed shop” after that date, and pro tanto the order should not be enforced.