Petition for Writ of Certiorari — St. Maurice v. National Labor Relations Board

Supreme Court brief1959

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FILE COPY

OF THE

AUG

pm ae

Ase.

poe S RO BROWMING, Clerk

In the Supreme Court

Sr. Macrick, HepMBaMP AND Mtsser,

a California Partnership,

vs.

os NATION ®,

Anited States

Ocroper Tere,

Labor ReLtatioxs Boarp,

T9590 |

Petifione ee

Re Respond ai.

- —_—_¢—_-————- -

PETITION FOR A WRIT OF CERTIORARI

to the United States C Court of Appeals

for the District of Columbia Circuit.

. (iiirorp G.

Suite 537,

Grorce ©. Banrs,

301 California Street,

RowLanp,

Forum Building.

ie Py =

Sacramento P4, California, “*

San Francisco 4, California, :

RayMonD S. SMETHURST,

1511 K Street, N.W..

3 ‘Washington 5.1. C..

, Attdrne ys for Petitione r.

4 Subject Index .

Page

see ec Bac niad REET REET ELLE TERETE COLETTE beens 2

stan vaca nines, MERE TET EUR CT OE COREY were ree ee 2

Questions presehted for. review uae Bae ag bag y ‘gitaaks 2

_ Statutory, provisigns involved ........ ica iki aay Henkes :

‘Statement NN oa i elves Vig acca tee rast |S .

Basis for federal jurisdiction in the court of first instance Re

‘ \

Reasons for granting thé writ Stee eens eee eeeeeeeeeeceeeeee! . 44

A Jick CUA CEK bk od REE ED SA ene 15

rgument “ a

3. 7 Court of Appeals for the District of Cokambia has

decided an important question -of federal law which

‘ has not been, but should be, settled by this court ..... 0 15 ©

2. The Court of ‘Appeals for the District of Columbia _

Cireuit tias decided a federal’ questién in-a way which. i

____._ 18 in conflict with. applicable decisions of this Court . - ae

Application of principles to case at bar ....... oe —< ae

3. The decision of the Court of Appeals for the Dfstrict — o—-

- of Columbia Circuit in .the instant ease is in conflict

with en decisions of ‘other Courts of Appeals 20

4. The instant ‘case involves substantial questions of .

public policy: PPT eee re te rr re eee errs 24 :

5. The instant case calls for an exercise 6f this court’s**? — —_»- —_——

__ power of supervision—overthe Courts of Appeals. in’

_ reviewing decisions of the National Labor Relations

ME iit eee: PE ie Pires i ee ne

(a) Reasoning et the Moet 54... 33-2. ee weeees 27

_ (b) Reasoning of the Court of Appeals piece ad beds Aa ae

~(e) ‘Alleged administrative expertise in conflict with =

. other decisions a rr ee 33

Conclusion ....$....cusscei sees neces teceec eset eacencens . 3&4

- $

8 _ “Table of Authotities Cited

. Cases i

Acme Mattress Co., 192 F. 2d 425 (7th Cir.) \ , LRRM

rE rr eres Perro TT er ree ae re Te Te ee

American. Newspaper Publishers Assn. (7th Cir.), 193 F. 2d

782, 29 LRRM 2230, aff. 345 US. 100 22.20.0000. nc te

- Geo. ID. Auchter (5th Cir), 209 F. 2d 273, 33° LRRM 2386 ‘

Pages: °

Blermakers Local 803, 218) F: 2d 299 (3rd C ir.); 35 L RRM |

+4 2355.22.06. Heong | Fe easy usedcvan SS eee as

Capital Service Inc. y..NLRB, 204 F. 2d 848 (9th Cir.), 320;

"LRRM 2280... 0... eee ee eee renee ee Pe Pe ree ee rere 20

Carpettters v. NLRB, 357 U8.98 4. cusanting. 16

Paniel Hlamm Drayage ‘Co., 185 F. aa 1020 (oth Cir.), oF

LRRM 2273... ees : ee reer ere eee eer eT ety ee 22 6 23

K. F. Shuck Construction Co. (9th Cir), 43 F.2d 519, 39 0°

Si TE SUE icc nw nes phtccvdaessedas D3

Eic hleay Corp., 206 F. 2d 799 (3d Cir.), 32.L RRM 2628 , 21

Loeal 911, Teamsters Union, 122 NLRB Né. 239, AS LRRM at

Cok s Sia casi bende phy 4 ves C044 cod eae FR >: Pitas i 16

F. H. MeGraw, 206 F. 2d 635 (6th Cir.), 32 LRRM 2220. 22.

-Mouwntain-Patifie decision, 119 NLRB 883, 41 LRRM 1460 34

NLRB y, Aintree Corp., 132 F. 2d 469 (7th Cir.), 11 LRRM

646, cert. den. 318 U.S. 744, 12 LRRM 890.............. 26

NLRB vy. Collis Baking Co., meg F. 2d: 483 - Cir.), 29 -

LRRM pEE Uh ecu ein can Cex aW hs eo4¥ as Sands aden Pos 20 -:

NLRB y.-Essex Wire Corp., 245 F. 2d 589, (9th -Cir.), 39 £

ae a ee ln gh we kan 20

NLRB v. Ford Bros., 170 Feed 735 i Cir.), 23 LRRM

Re eek i ve haeksieeenen 20

NLRB v. Gaynor News Co. ie ‘ii 2d 710 (2d Cir.), 30

LRRM 2340, affirmed 347 U.S ECP OTS ee ee ere ees 21

_NLRB‘y. Illinois Tool Works, oni F. 2d. 811 (7th Cir.) 17 ;

LRRM SN a oe ed cy Us Bey ene EO Se ee Oar ae tbeee 20

- TaBLe oF AUTHORITIES Kak iii

Pages

XLRB v. New York Employers Aisociation, Inc, 196 F. 2d :

7% (2d Cir.), 29 LRRM 2705 nee, %

NLRB. v. Talladega. Cotton Factory, 213 F. 2d 209 (5th ;

Cir.), 34 LRRM 2196 ..... EO eM, COE oy eee ee Ee TT 20: °.

NLRB vy. Vail Mfg. Co., 158 F. 2d 664 fe Cir), 19 LRRM. on

21%7, cert. den. 331 US a.) nn Sn oS '.20

National Maritime Union (- 2d . 175: F. 2d 686, 24

SE OO go cc channmadeh camssssessecdusspessedases \ @

Operating Engineers, Local 57, 201 F. 2d 771 (1st- Cir); 31 _~ M

. LRRM 244.......- PaaS ae! etn lua a eka als 22°

Operating Engineers Union = one 138 (Nassau and Suffolk oe

Contractors’ Assn.), 123 NLRB No- 167, 44 LRRM 1138 = 33

- Plumbers and * Steamfitters Local 234, 231 F. 2d 447 (5th eee

Cir.), 37 LRRM 2837, are we bps Se ehh cata coe ied .. 20

‘Radio Officers Union v yo NL RB. 347 U Sx 17, 33, LRRM 2417.

See Pierre per rer ree ee rN A eS, MN, 19, 32

re ea eae Meeveeertee We per rerey a1 ~

Ronney & Sons Furniture, 206 F. od 730 Lead Cir. Js 32 wk

LRRM 2635, cert. den. 346 U S. 937 «. neseeee yee 21°

S Lo

Swift & Co., 129 F. 2d 22 (8th Cir); 16 LRRM 837... +, 20 all

Thomas Rigging Co. 211 F, 2d 153 (9th cir), 33 LRRM / “

MOSS sie. ech yascneaccncsessseaessweedaswegees ase ses 92

& . * 1° % 7 A ~

Universal Camera v. NLRB, 340 U.S. 474, 95 L. ed. 456 26, 31, 33

Waterfront Employers of Ww ashington, 211: ¥. 2d 6 (9th

See! OR Beeeprerrrer rer Ty Serrener 3

West Texas Utilities (5th Cir. ¥ 218 F. ‘od 8 4 35° LRRM ~

2531, cert. deri. 349 US. 953, 36 LRRM 2203...... ... 2

: f

ee 4° *

; *. i

oe Rules eee

Supreme Court Rules: ; ; Ve ee

Rule 23( 1) (e) ee CCCI ce ert ians ENA SOP Ser . 6

TABLE OF ow AUTHORITINS CirTEep.

= <a te Statutes

-@ <% ;

Labor Management Relations Act, 1949: .- - . -° Pages -

a Seetiam.2(2) ..6. «0,2 Perrrrr entuns Ee of aS et: 11,

- Section 2(3) ...,...! Verran res iwke obi eene ogee —.

Sectiae- BO)... 666200005. Sie soee teen cakes Saeece .

ME ik ioc use sneak uns ep eis yoeniaa a: peas "11, 24

Section "8(a)(1) .. center e teen ten nters 7, 11/12, 24, 30.

« Section. 8(a)(2).....- SPS IER ES Sie 7, 11, 12, 24; 30

" Section 8(a) (3) ...6.. eee. sot geo8, ML, 12, 19, 23, 24, 30

a I tek fad is a ni Se ~

» eM BY aa in nate nas ent cn ess Ley 16

~ iia MURR ORVORYS Sion ce ete ass Ss 8 it, 12, 24, 30>

Section ae Kiieeuwiekeawncanen 8, 11, 12, 24, 30

* Section -8(b) (3) 2... ccc ce selec ee see eee cee nye git se

Section 8(b)(4)(A) ...........06e enna neawdlis ity e 12,16

Bection 9(a) ........ eae s senedeuisekal maneeds sus ‘Ii

os Section .10(f),-29 USCA os eee OpPe Terry ace ee |

"4 Ee hk She andedcedcxees PEND ARSENE Haare Ee 11,.16

National Labor. Relations’ Act, as patina (61 Stat..136, 29

USC 151 et seq.) Saban ween Ji ee eee LL Sk ahaa ake ne 0*

29 USC ISI .-.......: Fear ee Vinemnanes heesees ‘-

29 USC. V58 te ews eee ee eT or aa aakek ae Ae ee me

bs UN ee TN oS Uae aw eke taaewas —-_—

7 (1), ay = aes

5 3

4n the Supreme Court

. 2. “OP THE -

ne Rnited States

. " . <.Ocroper TERM, 1959

No. ? . C e

Sr. Maurice, HELMKAMP AND MvssER, } |

a California Partnership, - a

es Petitioner, 4

‘ae. eet sare oper ts

NaTIoNaL Lasor ReLations Boarp, a

: Respondent.

2. , ye

PETITION FOR A WRIT OF CERTIORARL ©”

_ to the United States Court of Appeals

| for the District of Columbia Circuit.

| p es e. es iy

Petitioner, St. Maurice, Hélmkamp and Musser prays

that a writ of certiorari issue to review the judgment of

the Upited States Court of Appeals for the District of

- Colum¥ia Circuit, entered in the above-entitled case on

Mav 8.1959, affirming an erder-of the National Labor

Relations Board against Petitioner.

eat

. OPINIONS BELOW...

The. opinion of the United States Court of Apfieals, for.

the. District of Columbia Circuit, ‘printed as Appendix’

_ ‘tA’? hereto, is officially reported in... he CS,

and .... F.2d... and is unofficially reported gn HL RRM

2078, and’ 37 CCH Labor Cases paragraph 65,433. The .

as case. number in. the Court of Appeals’ is No. 14,466, .

- ’ ‘The opinion of the National ‘Labor Relatiorts Board is

officially reported at 119 NLRB 1026, and unoflicially re-

: ported in 41 LRRM 1209. :

“suRIsDICTION.

. The judgment of the Courtof Appeals wi entered « on

May 8, 1959, and its decree was entered on June 1,°1959.

The jurisdiction of this Court to review the instant case .

is invoked under 28 USC §1254(1). a ery.

QUESTIONS PRESENTED FOR REVIEW.

Although there is but a single issue in this case, “it

raises numerous questions. Whe. i issue is the legality under

the Taft-Hartley Act, 29 USE 151 ff, of a **subvontractor”’

clause in a éollective bargaining agreement, either. by

itself or in “eonjun tion with a ‘union see urity"’ -¢lause in 7

- the same agreement. | |

i“ view of the many vidlations of he: iNet alleged, the

different sections and subsections involved, and the diffi-

culty ‘of stating fully in a few words the numerous. legal -

]

questions presented for review, they are set forth i in detail

below, following a preliminary: discussion, beginning at —

page 7... : : e oo eer

All of, the entities revolve. about this basic one: May

a labor organization and employer ‘lawfully agree.in ad-

vance to exclude from probable employment | ‘an. .identt- |

fiable group of prospective employees because they ‘are

not members of, or represented by, sau labor ofganiza-

tion? ete

Such is the. intent and * fect of ‘the “‘subeontractor”’

clause’ and the - ‘union security ’* clause in the collective

bargaining agreement in issue herein between Northern

‘and Central California arte of AGC and Operating

ae Union Local No. 3. +

This i is not a mere academic matter. The feeord in this -

case shows ‘that about 9% per cent.of all the heavy, high- - ;

way, engineering and building construction work in two- .

thirds of the State of California is ‘involved; that the.

nature of the ‘industry is such that a very substantial part .

of the actual work is done through the sy stem of: sub-

contracting. and that approximately sixty-six ‘per cent of

the professional engineering and field survey work, such

as that performed by the Petitioner herein, is subcon-

tracted to specialty contractors by the general or prime

contréttor. Re ee ?

The recor” also cetittiaias that but i the “¢suibeon:

-tractor’’ clause the petitioner herein would have per- -

“formed over $100, 000.00 worth of. field“ engineering work

during the period. from 1952 to 1955 for one AGC con-

tractor alone. Multiply this by the fact’ that the Petitioner

is but. one out of twenty-four firms in the Western Asso-

ciation, that there are numerous other firms doing sueh

~wark, that there are-over 385 ‘tregular’’ AGU members,

and it is rez dily ‘apparent that the economic impacf of the.

_ contract challen nged Herein, effectively, de priv es a multi-

‘tude of employees of ‘very substantial ‘employment. oppor-

tunities “for no reason other thas that they have choseR

One labor °arganization rather than another:

Kor the purpose of simplifi ‘ation, the contract provi-

sions, whic h, are set —- full below,! may be described

as follows: cake a, Sere ‘@,

W henever A, the employer party to the agreement, sub-

contracts work ‘to emplover B, an employer not a party

to the agreefhent, B must apply to. his employees all the

terms and conditions of employment agreed to’ between

ge ee

MSee ‘tion 2—Employ ment and Dicchings,

“(a) Hiring... | ; _ a

- nV * # * * e

“All employees covered by this Agreemtent shall be required, as

a condition of employmgnt, to apply-for and bevome members of,

and to maimtain membe®#hip in, the Union within thirty-one (aL)

days following the beginning of their employment or thig.effective

date of this clause, whichever is later. This clause shall be CTeetive

‘on June,.15, 1955, and shall be enforceable to the extent-permitted

‘op foe” f a ae

= & e * * e

“Seetion 12—Application to Sub-Contractors

“The terms ‘and conditions of this Agreement insofar-as it affects

Employer and the individual employer shall apply equally.to any

sib-contractor tinder.the control of, or working under contract

with such entployer on any work covered by -this Agreement, ‘and

said sub-contractor with .respeet to such work shall be considered

the safe as an individual employer cOxered hereby. 7

“That. if an. individual employe NU sub-contract work as

herein defined, provision shall be made in\uch sub-contract for the

vbservanee by said sub-contractor ef the terms of this Agreement.

“A sub-contractor is defined as any person, other. than an em-

plovee covered by this Agrtement, firm or corporation wha agrees,

orally or in writing, to’ pe ‘rform for or on behalf of?ar. itidividual

employ er any part or portion of the’ work covered by this Agree-

ment. : a

= t

\ and U nion C, including; inter alia, the requirement that

B’s employees. must becomg and . remain ae. of

Union ae

Thus discriminatory conditions of employment: are im-

posed by A and C upon employees of B, the subcontractor ;

=namely,~ working , conditions established by an employer

not their own antby a union ‘not at their own, choosing.

/ Under the. facts of ie instant ease, A represents the

é AGC Chapters, ( represents the Operating Engineers

Union, and B represents ‘the small éngineering. firm of -

St. Maurice, Helingamp and Musser, ‘the Petitioner herein,

who was the-eharging party before the: Board. Moreover,

the employees. of Petitioner, the subcontractor, are mein- .

hers of Engineers and Scientists of California, a labor,

“orga anization certified by the Board ‘as their exclusive bar-

gaining representative in a secret ballot election in which;

“the Operating Engineers Union had- an opportunity to

participate. Finally, Petitioner’ Ss employees are covered

by a collective bargaining agreement between their Union

and Western Assoe¢iation of Engineers & Land Surveyors,

to which Petitioner belongs. - BP “

In the instant’ case, therefore, not only does the ‘‘sub-

“contractor’’ clause create inherently disc riminatory con-

ditions ‘of the employment but its implementation neces-

sitates’ violations of the Act by Petitioner: nainely, ‘un-

lawfully a oe to bargain with the statutory representa-

tive of his. employees, interfes pee the rights of his

% employees to be — mted dy union of their own

choosing, and discriminating | against his emplovees be-

cause of their non-membership in Operating. Engineers

Union. In short, Petitioner.cafinot comply with the ‘‘sub-

“an - E e

contractor”’ clause without violating the law.

: 3 endive basic question presented for review, expressed

in the terms and the circumstances of the case, »efts re-

quired by Rule 23(1)(c), is whether the “subcontractor”?

clatise violates any of the/ sections of the Act charged,

where: .

‘fe seeks to include employees outside the bargain-

ing unit cov ered by the contract ; "yA ‘.

(b) it applies to employees not nibs by any, of

the employer-parties to said contract ;

union- “party to said contract;

AS : .

Rd) it applies to employees who are employed by an

employer who is a party to a different collective bargain-

ing agreement with a different union; P

(e) it,applies to employees who are members of and

represented by another union which is certified, by the

- National Labor Relations Board as_ exclusive bargaining

ee of such employees ; <

(f} it requires employees to become member rs of a

union which does not represent them; .

(x) it requires eal violate the Act in dealing

s ; ’

with their employees. .

> In effect, the,{‘subeontractor’’ clause is a device utilized

by the Operating Engineers Union for seizing control over

employees whom it is unable to organize. Viewed realisti-

cally, the situation is that of a ‘union doing indirectly

: \

So ; i

what it cannot lawfully accomplish directly. Since Oper-

-ating Engineers Union is not the bargaining representa- -

tive of petitioner's employees ‘and has no .standing to

negotiate an agreement with petitioner concerning their

warking conditions, it has resorted. to an agreement with

another employer, AGC, to gain dominion over petitioner's

employ ees. But how can one employer lawfully grant toa

union bargainixg rights over the employees of some other

employer?

Both the Board and the Court oa held that: a. sition

to enforce tHe “*subcontractor”’ elause was unlawful, but

. . that its ‘Sexec ution, *maintenance and implementation ”’

were not* unlawful, Out of this paradox or dilemma arise

‘. the following » questions which ate presented for review

herein: rik

ae hether, as a matter of law,. the execution, main-

tenahe e and implementation of a collective pargaining

agreement by virtue of which an employer is precluded

froni, subcontracting work to another employer unless the

latter applies the terms and conditions of such ‘agreement

- to his own émployees constitutes unlawful interference, re-

straint and coercion by an employer under §8(a) (1) of the

Labor ‘Management Relations Act 1949 as amended, 29-

USC §158, where the subcontractor’s employees are rep-

resented by another ‘Fabor organization which has been

certified by the National Lahor Relations Board as the

exclusive bargaining representative of” such employees.

2 Whether, as a matter of law, such ‘*subedntractor”’

clause under the aforesaid circumstances constitutes un-

lawful assistance by an employer toa labor organization —

in violation 9h $8(g) (2) of said Act.

+ 9?

8 : \

Whether, as a matter of law, sugh “subcontractor”

mee ‘under the aforesaid: circumstances constitutes un-

lawful discrimination by an employer against eniployees

in violation of §8(a) (3. of said Act.

+4 WW hether, as a matter of law, such ‘‘subcontractor”™’

clause under the aforesaid Cire umstances constitutes un-:

lawful restraint and coercion bv a lebor organization of

3 . . fon)

‘the rights guaranteed enployees in vtolation af §S8(b) (1)

(A) of the Act. .

-5. Whether, asa matter of law, sueh ‘subcontractor ™’

clause under the aforesaid circumstances constitutes an

unlawful attempt by a labor organization to cause. an

employer to, discrimimate against emplovees in violation

of §8(b)(2) of the Act.

> ee Hiether, as a mn atter of baw, mere e “recution: of said

coHective barg caining agreement constitutes a violation

of any of the sections charged herein whére the cmployees

whose rights will be adversely affected are prospectite

and identifiable.

7. Whether, as a matter a law, mainte nance wad-i Um-

plementation of said collective bargaining agree wient Gon-

stitutes a violation of any. of the sections of said Act

charged herein: wheie the emplovees whose rights will be

adversely affected-are prospective and identifiable.

8. Whether, as a matter of law, any of the sections of

said Act charged herein prohibit an employer and a labor

organization’ from entering into -a collective’ bargaining

agreement intended to be applicable to employees who |.

are not represented by said labor organization, who are .

not employees of said emplo¥er, and who are not included

within the bargaining unit covered by said agreement.

~ i a

Ye 9

9, Whether,. as a matter of law, any of the sections of.

said Act charged herein prohibit an employer and a labor

organizatio from entering into a collective bargaining

+ agre ementmtended to establish the terms and conditions

of. employment for employees who are covered by a sepa-

rate collective bargaining agreement between another

labor. organization where the latter labor organizatieh h

heen certified by the National Labor Relations Bo rd as

the exclusive bargaining representative of s iployees.

10. W hether, as a matter of law, anv 1e sections

of said. her charged herein prohibit , an employer and a-

labor organization from entering into a collective bargain -

ing agreement requiring the employ ees of athe r employers

to become and remain members of said labor organization

whet re a different. labor organizition has been certified-bv —— cae

the Boatd as the exclusive bargaining represe ntative of ”

said eniplovees, and where-said employees are- lawfully re-

quired ‘to become and remain members of the certified

lahor organization . pursuant to a collective’ bargaining

agreement. between ‘their employers’ and said certified +.

labor organization. ae —% -

i. W hether, was a matter of law, execution, niain-

tenance and implementation at Said-agreement constitutes

dise rimination ‘by one employes. against other employers,

or discrimination by ‘an employer against employees ..

within the meaning of §8(a) (3) ‘of. said. Act.

12. Whether, as a matter of law, discrimination against

employees by an employer may constitute a violation of:

S(ay(3) of said Aet where such emplovees are identifi-

able prospective emplovees of identifiable prospective. em- :

plovers as distinguished from” existing, identified em- |

ployees of existing, identified: employers.

13. Whether, asa matter of law, the > National: Labor

Relations Board or the Court of Appealy upon review

7 may dismiss a complaint on the grounds ds the unfair

‘s labor practices alleged therein are too remote afid) too

. speculative in the absence of any evidence in she record

to support such finding. of fact or conclusion wt law, |

14. Whether, as a mettersof haw, the finding ct” fact

or the conclusion of law: made by the: National, Labor

Relations Board? (and affirmed by the Court cf Appeals

upon revie w) that the unfair labor practices alleged in

‘the Sines are too remgte and too speculative is eon-

trary to the evidence. a i weA Need

___——_i._-W hether, As a matter of law, Ah National Labor

“Relations Board, or the Court of Appeals Upon review,

may properly dismiss a complaint alleging unfair labor

“practices by considering and dete rmining only the issue

‘raised: wy one allegation of the. complaint and failing to”

‘consid: y all ather alle gations of the complaint,

15. Whether, as°a matter of law the Vaited States:

Court of Appeals may properly exercise judicial sreview

of a decision by the National Labor Relations Board by -

deferring to the erpertise of the Byard in accase where

there Is No majority “pinion (MOK th: Board members

eax to the. grounds for the decision.

’

STATUTORY PROVISIONS INVOLVED.

: The statute involved is the National Labor Relations:

_ Act. as amended (41 Stat. 136, 20 USC Tot et seq.) popu-

lariy known as the. ‘Taft-Hartley Act. The following

e °

—.

ee : ‘ ra ‘

sections. or subsections of said Act are material and rele-

vant to this case, and the full text of said sections or sub-

sections is. printed: in Appendix “BY hereto:

Section 262);

Section 2(3);

Section 2(9);

Section 7;

Section 8(a)(1);

Section S(a)(2)3- or

-. Section &(a}(3)3 f ’

Section. 8(a)(5);

Section 8(b)(1)(A);

* Section 8(b}(2);

Section 8(b) (3) ;

~ Sectaon 9(a) J. a | ;

Section 13.__ =

‘ ‘

bs .

| - STATEMENT OF THE CASE.

Petitioner is a small firm with its rina office in

Marysville, California. It is engaged in office and field

“engineering work. The: office work consists: of making |

drawings” for. earth. moving, ‘grading, filling and the like

together with all the engineering ealculations,.imvolved.

The field work consists of laving out these drawings and

plans on the job site of construction projects and the

supervision of such work. The field work does not involve

the operation of, any earth-moving equipment such as °

caterpillar tractors, steam shovels and the like. Such work

ix performed by general contractors who are members of

“AGC and whose employees are represented by Operating

engineers Union.

The employees of Petitioner together with the em-

ployees of other engineering firms in Northern California

are represented by an. independent labor -organization,

Engineers and Scientists of California, Which | received

National. Raber Relations Board certifivation ax the result

of a secret hatlot.election in 1952 . This independent. union

has a¥gllective bargaining agreement with Western Asso.

‘lation of LP wngineers and Land Surveyors, Ine, of which

Petitioner is an emplover-member, All wsireamia | this

Association are registered: or dieensed. civil engince ise oF

land survevors under. the Business and a pofeantins Code- |

“of the State-of a ‘alifornia.

In Mare h 1955, a Joint Ve nture composed, of fons ren-

eral contractors, all members of AGT, subcontracted cer.

tain fiekd survey. ‘work ‘at: Travis, Air Force Base, Cali-

forniay to Petitioner: sei rating Engineer? Union claimed

au pn of the *subcontractor’” clause in its. collective

bargaining’ agreement with AGC and struck the Travis

Air Base construction project. Petitioner filed ‘secondary

hoveott”’ chargés under Section Sch) (4) ( A) of the Net

and the Ope rating Engineers r nion entered into a formal

settlement with the: Board providing for entry of a con-

sent decree by the Court of Appeals for the Ninth Circuit

énjoining such strike action. In the interim, however, the

Joint Venture was forced to capitulate to the U rion and

removed Petitioner’s + employees frorn the job.

Both the Board and the Court below (in No, 14298 and

No. 14406) found that by the foregoing conduct the AGC

and the Operating Engineers Union violated all of the

sections of the. Act charged herein: namely, $S(a)(1),(2)

and (3), and §8(b)(1)(A) and (2).

In order to escape liability under the Act for strike. ;

-action the Union in June 1990 demanded a new ‘‘subcon-

tractor’’ clause from .AGC: which required all. subcon-*

tractors to agree, in writing, in advance to comply. with

the AGC Master Agreement, including another new pro-

vision, naniely, a ‘“union shop" ,clause requiring thé sub-

contractor's employees to become and remain - amembers of

Operating » Engineers Union. The AGC acceded to. these

demands, although expressing doubt as to their legality,

| because of strike pressure from the Union. .

Thus, the Union, instead of having to enforce the “sub-

contractor” clause retrospectiv ely Wy: foreing the removal .

of the subcontractor’ s employees from a job ‘after the

‘she ‘ontractor started york, Was in a position to imple-

tient the * witicsatiactos” clause prospectively by pre-

venting any subcontractor from commencing work unless

he agreed in advance to comply with its Master Agree-

: “ment with AGC.. 7 ear

That this was the. Union’ s ohinek, ‘and that it was’ di-

rected against Petitioner, was inumediately demonstrated.

In July 1955, H. Earl darker, a general contractor and

AGC member, refused to award a subcontract to ' Peti-

tioner unless Petitioner agreed: to comply with the AG C

Operating Engineers © Union Master. Agreement even

‘though Petitioner- lec ennai P arker that it could not law-

ee a rae i i

Parker’s position is very revealing. In requesting advice

from the AGC, Parker stated: :

“4*We have received from St. Maurice, Helmkamp &

Musser (petitioner)... a quotation to do this work,”

and weuld very much like:to aw ard same to them. In

- 14

: ? oe :

the sie we have hired them to de work of like nature,

but have been continually harassed and even thieat-

“ened with actual Avork stoppage by Engineers Local

No. 3... if we did not withdraw them from the job.’ =

aa (Emphasis 's plied.) rae uration aie spat Saye

co 2 |

The AGC instructed :Parker not to subcentract wark to

Petitioner uptless Petitioner agreed ‘in writing . . . (to)

observe -and we by all of ti terms and conditions

of said Mi aster Agreement . |

In fact, the stipulated evidence shows that but for the-

existence and maintenance af the ** subcoritractor’” clause

in the Master Agreement and the advice givén by AGC to

implement it, Parker would’ have subcontracted over $100,- |

.000.00 of work to Petitioner on construction jobs ‘worth

almost six and one-half million dollars.

‘This summarizes the factual situation and the Tegal ©

issues’ raised.

BASIS FOR FEDERAL JURISDICTION IN THE ~*

COURT OF FIRST INSTANCE. ;

The ‘ecctudiutiies of the Court of Appesis was invoked . SS

and asserted under Section 10(f) of. the Labor Manage-

ment Relations Act, 29 USCA 160(f).

: :

REASONS FOR GRANTING THE WRIT.

7 ne Court of Appeals for the District of Voleinbia

Circuit has decided an important question of federal law

which has not heen, but should be, settled by this Court. © .

aie

2 The Court of oe has decided a. federal question :

in a way W hich” is in contliet, with applicable ‘decisions of

this Court. | oe oy |

3. The decision of the Court of Appeals for the District

m olwmbia Circuit is in conflict with applicable decisions

A“

of other, Courts of Appeals. ona

4, The instant ease involves substantial questions of

7 mae policy. . ea .

' The.instant case calls for an exercise of this Court’s

power .of ‘supervision over the Courts: ‘of Appeals in re-

viewing decisions of the National Labor’ Relations Board.

| ARGUMENT. aie toe

i. THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

_ HAS DECIDED AN- IMPORTANT QUESTION OF FEDERAL

LAW WHICH HAS “NOT. BEEN, BUT SHOULD BE, SETTLED

BY THIS COURT. Pad sAleel sae 3

This is a case of first impression. The legality of this

type of “+ subeontractor”’ clause has not been previously

litigated,” “The eonclusions. and recommendations of the

Trial Exaniiner for the National Labor Relations Board

were set aside by a divided Board. Although the deci-

sion of the Court of Appeals was unanimous, -the opinion

plainly indicates that the Court accepted separate but con-

ficting and v irt ually contradictory opinions of the various

Board -members as constituting an expression of. admin- .

istratir e expertise.

m ?

‘The issue in this case raise’ basic questions as to the -

scope of the Labor Management Relations Act.: Over the

years numerous decisions of the Board and the Courts; a

including ‘the opiniens of this Court, have created a large

7} ‘

body of labor: law ehi¢idating the various rights'a - and duties

of employers, employees am labor organizations under

this federal statute. However, many. fundamental prob-

lems and basic ‘principles’ have not as yet Le en fully ex. . |

plored or settled. ‘The questions presented for reyiew indi-

cate the fundamental natyre and importance of the issue.

involved in this case. ‘2s |

For example, does the ‘subcontractor’? clause constitute

| discrimination against employers or discrimination against — ¥

employees? Does the Act protect employees from discrim-

ination by. ‘one employer’ against ‘another employer where

a discrimination is based solely upon the. union affilia-

tion of the latter employer’ s employees? To what extent

does the Act’ protect e@plouee es against interference, re

straint and toercion resulting ‘from the execution, main-

tenance or implementation of collective bargaining agree-

ments?

In addition, this Case raises a question as to the: rela-

tion between Sections 13 and 8 a») of the Act. Section -13

‘ protects the right of a labor organization to stPike except

‘as. or. by Section S(b). Clearly, if th® “*subeon-

tractor’ clause itself is anthwfel: under Section Sib), a

strike to enforce it ‘is equally illeg ral under Section S(b).

But both. ~ Board and the.Court below. held that the”

‘sad

‘‘ gehhoombedet tor’ clause ‘is not unlawful but™ that a strike

‘to enforce it is unlawful. This anomalous result does not

. *The decision of this Court in the “hot eargo” ease, Carpenters‘

NLRB, 357 US 93, holding that strike action may be illegal, even

premiers the contrat sought to be enforced is not illegal per se,

deals only with Subsection 8(b)(4)(A), the so-called “ ‘secondary

‘hoveott” seetion, which is not involved in thes instant “ease. The

Board. itself so held i in ‘Local 911, Teamsters Union, 122 ; NL RB No. .

39, 43 LRRM 1144.

flow from-the facts of the case but solely from an errone-_

ous legal analysis and misapplication of. legal principles.

2. THE COURT OF ARPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT HAS DECIDED A. FEDERAL QUESTION IN A WAY —

WHICH Is IN. CONFLICT WITH APPLICABLE DECTEIONS OF

THIS COURT. _— _

The findings, conclusions and recap fendation: of the

Trial Examiner were based in part squarely’ upon the

- decision of this: Court in Radio, Officers Union v. NLRB,

347 US 17; 33 LRRM 2417. The result reached by three

me mbers df the Board {in separate and distinet opinions), :

_ affirmed by the Court of Appeals, is-in direct conflict with ©

the aforesaid case. The legal theory upon which, the Gens €

eral Counsel of the Board issued a. conplaint and ‘prose-

* cuted this case is direetly based upon this Court’s opinion

in’ the Radio Officers: case.. T he applicable principle is that.

the test of whether alleged conduct violates the Att is not

“only w hether the conduct itself. vuilates the. Act but” é

“-

. whether the natural and foreseeable consequences also’ vio- >

late .the Act. pes hay » ie, ‘7 3

‘f ne Sir

In the Radio Officers case ‘this: Court declared » Siege

‘But it isalso clear that spectficeridence. of intent. » 6

to encourage or discourage is- not ‘an indispensable

eleme nt of proof of violation of Section 8(a)(3) .

Both ‘the Board and the -courts have - recognized that

proof of-certain types of discrimination satisfies, the?

> intent requirement . This recognition that specific

proof of inten t is unnecessary where employer cond net

inhe rently encourages or discourage s union ype mhers

shipris but-an application | of the common tw rite ied

‘ aman is held to intend the fapencratie consequenc es

‘ 8

of his conduct... Thus an employer's protestation

that he did not intend to encourage or discourage must

“be unavailing where a natural consequence of his

action was ¢such encouragement or discouratement.

Concluding that encouragement or discouragement will

result, it is presumed that’ he- intended such conse-,

quence. fn such circumstances intent to encourage is

sufficiently established.’? (347 US at 44-45.) (lmphasis

supplied.) \

: * * * * .

. subjective evidence of employee response was

Viot contemplated by che drafters (of See. S(a}(3))

... (and) such proof is not required where éncourage-

‘ment or discouragement tan be réasonably. inferred

from the nature of the discrimination.’” (at p. of.)

tires ow . «¢ «le a %

“But, as noted above, it is common experience that

the desire of employees to unionize is raised or low-

ered by the advantages thought te be attained by sue

_action. Moreover, the Act does not require that the

‘employees discriminated against be the ones. encour-

saged for the purposes of violation of Section (a) (3).

Nor does the Act require that this: change in em-

ployees’ ‘quantum of désire’ to join a union have

immediate manifestations.

> ‘Obviously, it would be a gross ineonsisteney .to

hold that an inherent effect of certain discrimination

is enc ouragement of union membership but that the

Board may not reiwénably infer such encouragement.

We have held that a natural result ‘of the disparate

wage treatment in. Gaynor was encouragement of

union membership; thus it would be unre: sonable to

draw any inference other than that encouragement

would result fram such action.”’ (at p. 51.) °

; * 2+ #* # @

18° | 2

iis : i

“|, Since encouragement of union membership is

obviously a natural and foreseeable consequence of

‘any employer discrimination at. the request of the.

union, those employers must be presumed to .have~

intended such encouragement.’ Sic P- 52.

Application. of principles to case at bar. /.

The ** subcontractor”’ clause in the Ynstant case is clearly

within the context of ‘the foregoing principles for the rea-

én that it ‘‘inherently’’ encourages membership in Oper-

ating I ngineers Union and discourages membership in any

other union. .

In the Radio, Offic ers case this Court darther. declared:

“The policy of the Act is to insulate employees’ jobs

from théir organizational rights. Thus Sections 8(a)

(3) and.8(b)(2) were designed te allow employe es to

freely exercise their right to join uhion, be good, had

or indifferent members, or abstain froin joining any

union without imperiling their livelihood. The only .

limitation -Congress has chosen to impose on this

right is specified in the proviso to Section 8(a)(3)°

which authorizes employers to enter into certain union

security contracts. ...’’ (at p. 40.) (Emphasis sup-,

plied.)

‘ ‘2. e me. F

“M9 other discrimination aimed at) encouraging em-

Ak " ploye es to join,-re tain, or stay in good standing im a

union is condoned.’” (at p. 42.) {Emphasis supplied.)

It follows, therefore, that Section 8(a) (3) prohibits a an —

agreement between an employer and a union that requires -

employees of another employer to become membe@s of the.

contracting union. The provixo to Section g/ (a)(3) end {he

decision of this Court in the Radio Officers case (supra)

do not permit a union to make a union security agreement

with one: employer to he applicable to theeomployees of

another employer. But that is precisely the object and

intent of the ‘tsubeontractor” ‘clause in the instant case.

Thus, the **subecontractor’” clause in conjunction with the

‘union shop’? clause must be regarded as inhercntly un-

lawful under the principles already enune iated by this

pe * ‘ourt.

3. THE DECISION OF THE COURT OF APPEALS FOR THE DIS-

TRICT OF COLUMBIA CIRCUIT IN THE INSTANT CASE IS

IN CONFLICT WITH APPLICABLE DECISIONS OF OTHER

COURTS OF APPEALS.

(a); Numerous decisions by other Courts ‘of Appeals

have held that the test of whether alleged unlawful con-

duct constitutes inte ‘rference, restraint and coercion of em-

plovees proseribed by the Act ts the redgpnable tendency

of the acts and not their actual effect. NLRB v. Ford

Bros., 170 F. 2d 735 (7th Cir.), 23 LRRM 2088; NLRB v.

Illinois Tool Works, 153 Fy 2d 811 {7th Cir.), 17 LRRM

Sg NVURB v. Aintree Corp., 182 I. 2d 469 ((th Cir.), 11

LRRM 646, cert. den. 318 U.S. 744, 12 LRRM S90; Swift

& Co., 129° F. 2d 22 (Sth Cir.),.10 LRRM S373 ¢ Capital ,

| Service Inc. v. NLRB, 204 F. 2d 848 (9th Cir.), 32 LRRM

D280; NLRB v. Collins Baking Co., 193 F. 2d 483 (Sth

Cir.), 29 ERRM 2206: NLRB rv. Essex Wire Corp., 245 F.

24° 99 (9th Cir.), 39 LRRM 2682; NLRB v. Talladega

Cotton Factory, 213 F. 2d 209 (oth Cir.) “384 LRRM 2196;

NLRB v. Vail Mfa. Oo., 158 F. Ld 664 (7th Cir.), 19

LRRM 2177, cert. den. 331 U.S. 885: Plumbers and Steam-

fitters Local 234, 231 F. 2d 447 -(S5th Cir.), 37 LRRM 2837.

This test, has cle ar applic ation in the instant case be-

cause the thrust of the subcontractor’ ’ clause, even with-

out regard to the ‘union shop’’ clause, is to establish

terms and‘conditions of employment fer. eniployees whom

Operating Engineers Union has no authority~to, Tepresent

and who are not properly within the’ reach of* the. bargain-

ing unit covered by the -AGC- Operating Engineers Master

Agreement. Since the evidence shows that prospective im-

plementation of the‘“subcontra¢tor’’ clause is ‘tantamount

to the “exclusion of Petitioner's “dmployee s from perform-

ing field survey work at more than 90 per cént of the

projects. undertaken by general contractors in two-thirds

‘of the State of ‘California, the natural and inevitable.

tendency to interfere with, restrain and coerce employees

in the free exercise of the right guaranteed them by

Section 7 of the Act is the only legal concluston permis-

sible.

(b) Numerous decisions of ‘other Courts of Appeals

have held that mere execution of a collective bargaining

agreement which contains union security or union recog-

nition provisions in excess of the scope permitted by the

Act constituté a violation. of the statute entirely apart

from its enforcement and without any necessity of show- |

ing actual knowledge by, or effort upén any employer.

Red Star Express Lines v. NERB, 196 FP. 2d 78 at SI

(2d Cir), 29 LRRM 2705; “NLRB vr. Gaynor News Co.,

197 F. 24 710. (2d Cir.), 30 LRRM 2340, affirmed 347 U.S.

17: deme Mattress Co., 192 F. "oq 425 Tth Cir.), 29 LRRM

2079: NLRB v.New York Employers Association, Tne...

196 F. 2d 78 (2d Cir.), 29 LRRM 2705; Eichleay.Corp.,

206 F.2d 799 (3d Cir), 32 LRRM 2628; Ronney & Sons

99 _ rg

Furniture, 206 F. 2d 730°(9th Cir.), 82 LRRM 2635, cert.

den. 346 U.S. 9375 F. H: McGraw, 206 F. e2d 635 —

Cir.), a2 LRRM 2220; Operating Engineers, Local 57, 201

F. 2d 771 (1st Cir.), 3b LRRM 2344; Thomas inatiy C'o.,

211 F. 2d 153 (9th Cir.), ¢ 33 LRRM 2653. |

In the New York E mployers Association case » the Court

of Appeals £8r the Second Circuit stated:

#The execution of a contract containing a forbidden

union security clause constitutes an unfair Tabor -

é practice. This is so because the existence of such an

agreement w ithout more tends -to encourage memier-

ship in a labor organization . . . The Act requires .

that the employee shall have feueddes of choice and

any form of interference with that choice is for-

bidden.’? (Emphasis supplied.) |

This principle is followed and applied almost daily by

the Board in setting aside collective bargaining agree-

ments containing illegal provisions stich as closed-shop-

clauses, union-shop clauses which fail to grant the re-

quired thirty days grace period, hiring-hall clauses which

require union elearance or which fail to provide safe-

guards against. discriminatory operation, prehiré reeog-

nition contracts and union security contracts with minority

unions, ete.

In none of these cases is it legally necessary to show

that the employer enforced the contract. because of eco-

homic pressure from the union, The important point as

applied to this case is that under, the Act the legality

or illegality of a collective. bargaining agreeme nt does not

depend upon whether it was entered into voluntarily or

involuntarily.

‘23

Thus, the conclusion by the court below that ‘‘imple-

se r v ; ¥ vy?

mentation of the *‘subcontractor ” clause by the ae

was roluntary, and, therefore, no violation could exist,

in "conflict with a well- established principle, enforced iy

many: Courts of Appeals, and is clearly erroneous.

_have held that Section 8(a)(3). is not limited to an em-

‘ployer’ s own employees and is not limited to particular,

identified, existing employees. West Teras U filities, (Oth

Cir.) 218 F. 2d 824, 35 LRRM 2531, cert. den. 349 U.S.

953, 36 LRRM 2903 ; B. FF: Shuck Construction Co., (9th

Cir.) 243 F. 2d 519, 39 LRRM. 2322, 40 LRRM 2167: Geo,

D. Auchter, (5th Cir.) 209 F. 2d 973, 33. LRRM 2386;

American Newspaper Publishers Assn, ‘(7th Cir.) 193 F.

Ped 782, 29 LRRM 2230, aff. 345 U.S. 100; National Mari-

: ‘time Union, (2d Cir.) 175 F. 2d 686, 24 LRRM 2268;

Waterfront Employers of Washington, 211 F 2d 946, (9th

Cir.) 34 LRRM 2049; Boilermakers Local 803, 218 F. 2d |

299 (3rd Cir.), 39 LRRM 2355; Daniel Hamm Drayage

Co., 185 F. 2d 1020 (5th Cir.) 27 LRRM 2273.

Thug, the decision of the court below that the Act does

not reach “prospective employees of a prospective sub-

- contractor’? is clearly contrary to the weight of judicial

authority.

For’ example, in the NatNral Maritime Union case

(supra) the Court of Apyeals for the Second Circuit held:

9 .

vasis for respondents’ argu

nent that Section 8 (b) (2) does not make it an ‘un-

‘@ fair labor practice’ to attempt to cause an employer

. we see no rationa

to dise riminate against a group of employees or po-

tential employees but only against seme specified

employees or potential employees.”’

fl:

. mS -

Be |

sat ; | Poa

As previously pointed out, the employees whose rights

are adversely affected by the “subcontractor.” clause are.

‘clearly identified or identifiable. ~

4. THE INSTANT, CASE INVOLVES SUBSTANTIAL

QUESTIONS OF PUBLIC POLICY.

“As already mentioned, the issue in this cay presents

fundamental questions of legislative intent aso the scope

and meaning f. basie ‘provisions of an important federal

statute. It is clear that Congress intended to outlaw. col-

lective bargaining agreements which interfere with the

rights of employees quardnteed under Section 7 of the

Aci. j | |

- To hold, as did the Court below, that a labor organiza-_

tion which does not Tepresent the employees of particular

employers and an employer who does not pero y such

employees amay by contract impose a bargai iminge repre-

sentative not of their own-choosing upon those employees

and the terms and conditions of their employment with

another employer is contrary to the basic objectives. of *

the Act. Section 7 guarantees employees the right to bar-

gain . collectively . through representatives of their own.

choosing. Section S(a)1), (2) and (3) prohibit an em- -

ployer from foisting upon employees a bargaining repre.

sentative not of ‘their own Choosing. Section Sib) (1) (A)

‘and (2) prohibit: a labor organization from causing or

attempting to cause him'to do so, either by economic pres- .

sure or by contract provision. The inherent vice of. the

‘*subeontractor’’ clause is that it.creates conditions for

future wholesale discrimination. The record in- this case

, -

(agreed to by. stipulation among all. parties’ establishes

~-that~ such -conchision~ + not—remate, _or.speculative but:

et aero ,

‘rather is the natural, probable andflorese ‘able, if not the

necessary and inevitable, consequence, of this particular’

collective bargaining agreement in this particular fact

situation. ; | : :

Public potiew certainly demands that emplovees repre-

sented by Engineers and Scientists of California be pro-

tec ‘ted by the ce rtifieation of the 3 National ‘Laber Relations

Board that anid indepe wndent union is their « relusive har-

caining representative. This Court should consider. the

question of whether Operating Engineers Union by con-

traet with AGC may lawfully ignore and evade that cer-

tification.

Public es also demands that einployees’ job opper-

tunities he protected against conditions Imposed upon

their emplover whiek require him to violate-the Aet. This

precisely the effect of the. * subcontractor”” clause as

applied to Petitioner and other fomploversnenbers of

Western Association who are legally obligated to recog-

nize Kngine ers and Scientists Union as the statutory rep-

rese ntative of their employees, The certifie ‘ation of the

independent union precludes recognition of Operating En-

Odin a

: NO od

fineers Union” and the agreement between Operating

Engineers Union, and AGC: requiring such recognition |

should be held illegal per selas contrary to public poliey,

j Finally. it may he noted that this case involves a_special

type of ‘subéontractor”’ clause. Tt is not the tsual clause’

designed to prevent an employer from evading his union

contract or minimizing or defeating a union's gains hv

subcontracting out the work involved at cheaper terms. -

2. g

26 9 @ : V%

In the case of the building and construction industry sul -

contracting is characteristic. of. the enterprise. [It is im-

possible for a general contractor to specialize in all kinds

of work or to have the crews of equipment to perform it.

Consequently, he necessarity must contract out. a large

amount of each contract he’ performs. Such Was the situ-

aiion here. The parties themseaves stipulated as follows:

This long-established practice of subcontracting rs

a. fundamental characteristic of the building and con-

struetion industry, and its continuance ix essential te

the efficient and economical performance of building

-and constructien work.”

. ee

“It would ‘be uneconomical, if not imate, for

, a general e nyineering contractor or a general building

contractor to assemble and maintain the |, -cialized

‘equipment and the specialized personnel needed to

perform every phase of each one ot the- varied pro):

éets he ‘is licensed to construct.’

’ .

n itl

* 5. THE INSTANT. CASE CALLS FOR AN EXERCISE OF THIS

COURT'S POWER OF SUPERVISION OVER THE COURTS OF

APPEALS IN REVIEWING DECISIONS OF. THE NATIONAL

LABOR. RELATIONS BOARD.

In Universal Camera = en 340 ULS, 474. 05 Le ed.

45. this Court laid down) the basie rules concerning. the —

scope of judicial review of decisions of the National Labor.

Relations Board. It is respectfully submitted that the de-

‘¢ision of the Court of Appeals in this case has departed

from the standards, established in the aforesaid Case.

In effect, the Court below has applied the principle of

administrative agency ‘‘expertise’’ to a.case which does

not involve issues of fact ‘requiring special knowledge to’

resolve, and which -expresses three directly conflicting

‘views of the law with no majority upton. cs

(a) Reasoning of the Board

The three majority members of. the Board. arrived at /

their decision by opposite lines of reasoning. Two of the

inembers declared that if their process of®reasoning was

‘correct, the reasoning of the’third member could not be

‘correct. In other words, the reasoning of the Inajority was

based upon two mutually exclusive and irreconcilable lines

«of thought. The Court’ helow, instes id. of. resolving this

hopeless and irreconcilable conflict, contented itself by

refusing to interfere with eithér. line of reasoning, While

" recognizing that the Courts must defer to the Board’s ex-

‘pertise in a proper case, it is submitted that, when the

Board itself is hopelessly in conflict and cannot agree

upon a single line of reasoning to decide a case, itis the

duty and funetion of the Court to assvane jurisdiction and

fy issue an authoritative riuding.

_ Chairman Leedom and Member. Murdock decided that

the aets here involved were not a discrimination against

employees but constituted’ merely discrimination by. one

employer against another. The fallacy of this reasoning

ix SA obvious that it is diffieult to see why the Court below

refraine d from’ xo declaring. The continued granting of

suheontraects to Petitioner was: conditioned not on some-

thing that Petitioner was required to do or not to do but

was based solely and exclusively ona requireme int ut

something that his employe es had to do. ‘In other words,

ae 5 aoe

the employees had to change from the ‘union of their own

choice and the contract they had negotiated to, Operating

Engineers Union and the terms and ‘conditions of its con-

tract with AGC if they wanted to work under any, sub-

contracts with members of AGC. Thus the objget or target

of the dise ‘rimination was not ‘the employer Dut was his

employees. vere “ae

Fic third ened: Member, Whose vote made | up the

inajority of the Board, \lisagreed with this reasoning and -

conclyded that the discrimination was directed. not. agi ainst

the cnaone ‘but against his employees. However, Mem-

ber Bean reasoned that the possible future effect upon -

employees of subcontractors was too remote and teo

-\ . . 2 - . :

speculative to constitute a violation of the Act.

It ix submitted that such, conclusion is vontrary to the

record in, this case. W hen the Operating Engineers Union

found: that it was in violation of law by causing a work

stoppage: in order to enforce its de mand, it resorted to

the ‘‘subeontractor”’ ‘clause involved. in this case to ac-

complish exactly the same objective, namely, discgimina-

tion against exactly the same employees. The record

shows that this new agreement between Operating Engi-

neers Union and the AGC was ‘signed on the same day

upon which the Unign signed its stipulation for a con-

sent decree ‘agreeing to ‘digcontinue the activities whie ‘h

have been found to be illegal in the companion CASES*

Nos. 14,298 antl 14,406.. |

The contract was entered into for the specifie purpose

of ae complishing exactly - what the Board and the Court

had prohibited in the two cases last mentioned. In other

words, the U nion said, ‘Instead of removing Petitioner’ s

‘ 29

;

“eiployees from: the job, we will prevent ‘them from ever

‘going on the job by means of this new form of ‘subeon-

- tractor’ clause.’? ae

Member Bean decided that EXEC ution, maintenance and

‘implementation. of the * subcontractor’? -cleuse was too

remote and too spec vulative to connitinte a violation )

the Aet. However, we believe it fair to- say that the ‘‘sub-

b] sé

contractor’? clause was - an at the time when

Parker offered Petitioner work upon tondition that Peti-

tioner agree in ‘advance to require his employees to be-_

come anembers of, and to work under the contract between

Operating Engineers Union and the AGC. Certainly there.

“was nothing remote and speculati ve ahout this. The sub-

contractor was identified a his employees were identi- |

“fied, and it was made. very clear what the employ ees .were

required. to do in order for the subcontractor to obtain

thé. work in question.

C icivaien Leedom and Member Murdock strongly criti-

cized Member Bean’s line of. reasoning, saying:

©The apparent ground for the distinction is that

the Joint Venturenaw fully could agree to refuse’ to

‘do business prospectively with subcontractors who —

would not abide by its contract with the union, but

that, having engaged in such a subcontract it could

not thereafter suspend the subcentractor to rectify its

breach of contract. We do not believe that this dis-

tinction is a valid one.”’ 3 |

Yet the Court below, in effect, approved both these

contradictory lines pf reasoning.

es 3 i Femteye

(b) Reasoning of the Court of Appeals. ~

* At thé outset Petitioner Tespetfully submits, that

the Court of Appéals failed to consider, at least two- thirds

‘of the case presented: ‘to it for review. This case- was con. |

sidered’ only in the final two. paragraphs of the Court's

“nine page’ opinion.. ‘The séle issue which. the Court ruled |

on avas whether the **subeéntractor’” clause constitutes

unlawful discrimination, in violation of Sections S(a) (3)

and S(b)(2 2).. The Court did not rule’ upon these additional

‘points - which Petitioner raised hefore the Board cand:

specifically set forth in ‘its petition for review and brief

to the’ Court of Appeals: o

oW hether,the ‘rsubeontractor”’ clause constitutes inter;

ference, restraint and coercion of employees’ Tights in

‘violation of Section .8(a)(1)?- 3

Whether the ‘“subeontractor”’ clause constitutes unlaw-

ful assistance to a labor organization in violation of Sey

tion 8(a)(2)1 seme ca, 7

Whether «the ‘‘subeontractor’’ clause | constitutes re-

straint and coercion of eniployees: ‘rights = violation | of

Section S(b) (1) ( A)?

Whether the ‘*subcontractor’’ clause, constitutes an at-

tempt by a labor organization to cause subcontractors to

discriminate against their employees in — of See-

tion 8(b)(2)2

It is Petitioner's position that the “‘subeontractor”?

clause may and. should. he found to constitute illegal ia- |

terference, restraint; coercion “ar assistance, or_an unlaw- .

ful attempt to cduse discrimination independent of

whether or not it is found to constitute actual diserimina-

tion. |

. aa ° 31

2, “The erux of the Court's opinion is its deference to,

the ¢ rpertise ‘uf the Board, The. fallacy-.of- such approach

has been mentioned above. Such approach is inconsistent

with this. Court’s reasonutyg in the Universal Camera: case,

cited supra, Wherein it is declared that the Courts of Ap-:

peals must set aside the findings of the Board ‘when the

record . . . clearly precludes the Board's decision from

being, justified by . .°. its informed judgment -om matters

within its special competence. . . ,”’ (340 U.S. at 490.)

It cannot be overemphasized that the facts in this case

are not in dispute. All of the ev idence was submitted by

<tipulations aniong the parties. The findings ‘of the Trial

Ixaminer completely support the conclusion , that the

‘‘subeontractor”’ clause is unlawful per se The Court -

below did not give any consideration to the findings of

, the Trial Examiner, Wthough this Court declared in Uni-

versal ¢ ater “a, supra, that: , aS. :

‘an examiner's report*is as much a part of the

record as the complaint or the een: Acvording

to the Administrative Procedure Act, ‘All decisions

(including initial, recommended, or tentativ e decision)

shall become a part of the record . icing

A, oe plain language: of the statutes directs a re.

viewing court to determine the substantiality of evi-

dencé on the record including the ex xaminer’ = report.”

It ix submitted that the findings of the. Trial hessiiner,

based upon undisputed evidence, do not permit the Court

to conclude that the “+ relationships between AGC and

, prospective employees of a prospective subcontractor. werg

so attenuated” that ‘execution, maintenance and imple.

“s

‘

: ee

Qy f , " : 4 peer

32 ; oe e

mentation. of the. **subcontractor’’ clause cannot -consti- .

tute.a violation. of any section of the Act.

.Moreover, the Court’s. statement: that the Board .

concluded ds erroneous. As prev iously pointed. out, only

one Board member took the position .that the ‘possible

effect’? of the subcontractor clause was ‘too remote’? and

too speculative”? to support a ‘finding of a violation of

the Act. Petitioner respectfully urges thaf the Court of

Appe als has no power to faxhion’ a majority opinion for

-the Board where none exists, especially where Members

Leedom and Murdock, who together with Membe ir Bean.

‘comprise. the majority decision from whic ‘h Petitioner ap-

~ pealed, flatly “and expressly repudiated that very, position

taken by Member Bean.

The irreconcilable divergence. bf view in the opinion of

the Board Members cannot be overeniphasized:

Two Members, Rodgers and . Jenkins, old ee the

subéontractor’’ clause was illegal’ per se,accepting the

findings and conclusions of the Trial Examiner and rely-

ing primarily, as did.the Examiner, on the opinion and

reasoning of.this Court in the Radio Officers case, supra.

Two Members, A.eedom and Murdock dismissed all,

charges on the ground that the ‘tsubcontractor’’ ‘clause

discriminates only against “employers and that the. Act

only forbids discrimination against employe es.

Member Bean held that the strike to enforce the *‘sub-

feefitractor’? clause was illegal ‘hat that its» execution.

inaintenance and prospective implementation was not ‘il-

‘ - ‘ ¢ . rae" : ¢ 5 .

_ legat because, as explained above, its ‘‘imerely possible

effect’? was ‘‘too remote’’ and *‘t6o0 .~ 2culative’’

‘ >

For the Court: of Appeals to accept, “without any in- -

de pendent review whatever, the + judgment”’ ‘of the Board

in this case cledrly calls for: ‘the SUperersory intervention

of this Court, Petitioner submits that. this is that rare

case where the standard enunciated in the Unive ‘sal

Camera case has been * erossly mnixsapplied”’. (640 U.S. at

491.). To the. extent that the decision of the Court -

Appeals is based upon a findin& of an ‘‘attenuated”’

lationship, it is .not supported by any evidence on is

contrary to all of the evidence. ‘To the extent that it is

based upon a finding that the. only discrimination fore-

seeably ‘resulting from. the exec ution, maintenanee and—

sinpleme intation of the ‘‘sube contractor’? clause is diserimi-

nation ‘ayainsl employers rather than’ employees, it is

likewise not supported by any evidence and is contrary

to o of the evidence. ; s ‘

sions of same agency.

Lastly, the Court of Appeatt deterene ‘e to the Board's

alleged ‘'expertise’’ must be re warde ‘das crroneous where

the: conclusion reached by the Board iu the instant case

is completely out of line-with its own decisions.

This pornt can best be made by referring to the latest

Board decision on the stithject of illegal hiring hall agree-

ments between employers and unions. In Operating Enqi-

neers Enion Local 138 (Nassau and Suivlk Contractors’

Assn.), 123 NI RB XS. yet, 44 LRRM 1188, the Board has

held that where a collective bargaining agreement pro-

“vides for an exe Jusive union hiring hall but fails expressly

and affirmatively to..state that, it shall be operated ina

non-discriminatory mayiner, the parties must jointly re-

fund all monies paid by employees to the union over a

_six-inonths period because tee isfence of such contract

without regard to its enforcement or evidence of actual

discrimination, is inherently coercive and unlawful.

This legal theory of the Board, based upon the Moun-

lain Pacific decision, 119 NLRB 883, 41 LRRM 1460, ean-

not Ke reconciled with its decision in the instant. ease.

Significantly, the Mountain Pacific doctrine makes a‘col-

lective bargaining agreement illegal per se even though

it is non- discriminatory on its faée and without reqard

to its whit impact on any employees.

a®

Petitioner submits that if an exclusive hiring hall clause

violates the Act beeause it is inherently coercive, a

fortiori, the “subcontractor”? clause in the instant case

must be held violative of the Act -for the same reason.

CONCLUSION.

By way of final comment, Petitioner points out that

the *‘subeontractor’’ clause challenged herein threatens —

the hasie freedoms of our‘society. Big Business and Big

Labor have put their: respective powers together to con:

trol a substantial industry: by, saving, in effect, to the

small employers and their employe es: ye We have decided

upon the rules under which you can és business. If vou

want to do any work in this a? in this area, you

will have to follow our rules,’

: . .

federal labor law, it is respectfully urged that this pefi-

tion for issuance of a writ of certiorari to the United

States Court of: Appeals for the District of Coluinbia

Circuit be granted. ;

7 | Respectfully submitted,

| GILFORD G. RowLanD,

Gerorce O. Bars,

~Raymonp 8, SMETHURST,

Attorneys for Petitioner,

(Appendices Follow.)

Appendix “a”

Hnited States Court of Appeals

FOR THE DISTRICT OF ( ‘OL UM BIA CIRCU IT

o. No. 14298 -

OveraTiING ENGineers Loca Usion No. 3 of the Dyterna-

TIONAL U NION OF OPERATING KxGingcers, AFL-CIO,

PETITIONER

Nationa. Lapor RELations Boarb, RESPONDENT

‘ ,; No. 14406

National Lapor Revations Boarp, PETITIONER

> ae

NorTHERN CauirorNiaA Cuaprer, Tur Associatep GENERAL:

Contractors oF AMERICA, INxc., and CENTRAL CALIFORNIA

CHAPTER, THe AssociaTep GENERAL CONTRACTORS OF

. AMERIC A, INc., RESPONDENTS

No, 14466

St. Mavrice, HeLMKAMEP AND, Musser, a California

. _ partnership, PETITIONER -

> ;

NATIONAL LABOR Rei. ATIONS Boarp, RESPONDENT

On Petitions to Review arid Set Aside in Part, and on -

Petition and Cross-Petition to Enforce, an Order of the

National Labor Reiations Board

Decided May 8, 1959

Mr. P. We McCarthy, Jr., of the bar. of the Supreme

Court of California, pro hac vice, by special leave of

Court, with whom Mr. J. Albert Woll was on the brief for

petitioner in No. 14298. ra

Mr. George Bahrs, of tie bar of the Supreme Court of

California, pro hac vice, by special leave of Court, with

whom Mr. Raymond \S. Smethurst was ven the brief, for

petitioner in No. 14466. ae fev,

Mr. Arecld Ordman, Attorney, National Dabor Rela. --

tions Board; of: the bar of the. Supreme Judic ial Court of

Massachusetts, pro hac vic e, by special leave of Court,

with whom Messrs.cJerome -D. Fenton, General Counsel,

National Labor Relations Board at the time the brief was °

tiled, Thomas J. McDermott, Associate General Counsel,

National Labor Relations Board, Marcel Mallet-Prevost,

Assistant General Counsel, National Labor Relations

Board, Miss Rosanna A. Blake ane. Mrs. Nancy M. Sher-

man, Attorneys, National Labor Relations Masel were on |

the brief, for petitioner in No. 14406 = respondent in

Nos. 14298 and 14466,

Mr. Thomas FE. Stanton, Jr., of the bar of the Supreme .

Court of California, pre hac vice, by speeial leave of

Court, with whom Mr. Travis Brown was on the brief for

respondents in No. 14,406:

Before Witper K. Miuuer, Bazeto~n and Fauy. Circuit

Judges.

Fanuy, Circuit Judge: These three consolidated cases

bring under Teview a decision and order of the National

Laber Re lations Board.' The relevant events appear in

'In No. 14298 petitioner, Loeal 3, sceks review of a decision and

order which found that it and AGC had committed unfair labor

practices. The Board secks enforcement against Local 3. In No.

14406 the Board as petitioner seeks enforcement of that portion

considerable elaboration in the report of the case at 119 |

N.LAR.B. 1026 (1957).

The Associuted umes Contractors of America, Inc.,

rele ‘red to as AGC, was the pfime contractor on a con-

struction project at Trawis Air Force Base in California.

The Operating Engineers, Loeal Union No: 3-of. the In-

ternational Vnion of Operating Engineers," AFL-CIO, re-

ferred to as Local Ki represented the AGC employees

under two collective bargaining agreements with AGC,

one referred to as the 1954 Agreement and the other as

the 1955 Agreement. _ ;

* Case No, 14298 involves the 1% a4 Agreement, contain-

img the following clause?

. The terms and vmniabone of, ‘this agreement —*2

shall apply equally to any ‘snb-contractor under the

control of, or working under contract with [the]. em-

ployer on-any work cover red by this agreement, and

said sub-contractor with respect to such work shall

be considered the same as an individual employer

covered hereby. |

AGC subcontracted some of the work to St. Maurice,

Helmkamp and Musser ry a California partnership, referred |

to as Musser. Musser is a member of the Western Asso-

elation of ‘Engineers, Architects) and Surveyors, ¢ called

Western Association, which’ represents its members in

labor re ‘lations matters. In 1992 the San Francisco ‘Area

(iroup of Professional Employees, referred to as Pro-

fessional Employees, was certifi di is the representative

of its order directed sania Ge, Musser, petitioner in No.

14466, seeks fo review and set t aside that portion of the order

whieh dismisses allegatiohs in the complaint that Local 3 and

AGC committed unfair Tabor practices other than those jana

by the Board,

of the employees aire ‘for members of the Western

Association. Musser emploved on the. T ravis project four

members. of ProfeSsional Kimployees who had a collective

bargaining agreciment with Musser, via Western Associa-

tion.

At the instanee of Local 3 a work stoppage occurred

at the Travis project. The Board found it to: be due to

ihe employment by Musser of the four employees who,

-would not come-under Local 3's agreement with AGC.

The Board also found that in the effort to bring them

within the agreement pressure through the work stoppage

Was put upon AGC and, through AGC, upon Musser and

the four employees s. AGC in fact brought about the sus-

‘pension of the four cmployees and replaced them with

its own, who were covered by its collective bargaining

agreement with Local 3. The Board found that in this

manner (a) AGC violated sections 8 (a) (1) (2) and (3)

of the Labor Management Relations’ Act and that Local}:

violated: s sections 8 (b).(1) (A) and (2) by causing the re- |

moval of Musser’s employees~and (hb) that Local 3-also

violated sections & (b) (1) (A) and: (2) by attempting to

‘cause Musser, through the AGC, to violate section’S (a)

(3)2 ue ei

The rari provisions of the Aet, “61 Stat. 140-41 -(1947)

29 U.S.C. § 158 (1952), are:

“See. 8 (a) It shall Be an unfair labor - practice for an em-—

ployer— ;

“(1) to interfere: with, restrain, or coerce employees in

; the exercise: of the rights guaranteed in section:

. “(2) to dominate or interfere with the fobtmint ic or oY

ministration of any labor organization or’ contribute financial

or other support to it...

(3) by disertmination in regard to hire or tenure of

employment or: any term or condition of employment to en.

In case No. 14466 the 1955 Agreement was in effect.

The ‘agreement contained a provision for union ‘security

and a subcontractor’s clatise which ‘reads as follows!”

The terms and conditions inf this Agreement inso-

far as it affects Employer and the individual em-

ployer shall apply equally to any sub-contractor under

the control of; or working under contract with: such

employer on, any work covered by \this Agreement,

and said sub-contractor with respect, to such work

shall be considered the same as an individual em-

(ployer covered’ hereby. 2 Te

That if an individual employer shall sub-contract

work. .as herein. defined, proviston shall’ be made in

such sub-contract for the. observance by said .sub-

contractor of. the terms of this Agreement. | km-

‘phasis supplied.] 3 em

Moreover, AGC this time refused to subcontract to”

Musser, because Musser would not conform with this pro-

‘vision. Musser’s reason was, as previously, that it had a

collective bargaining agreement with the Professional Ein-

ployees “as the certified re _csentative of its employees,

and, therefore, it could not lawfully compel them to join

‘Local 3. In this instance the Board, by. a divided vote as’

—_—_——

courage. or diseourageé “membership in- any labor organiza-

eee sie:

“(b) It shall be an unfair labor practice for a labor organi-

zation or its agents— -

“(1) to restrain or coerce (A) employees in the exercise -

of the rights guaranteed in section 7...-° 2

(2) to cause OF attempt to cause an employer to dis-

eriminate against an employee in violation ‘of subsection -(a)

(3) or to discriminate against: an employee with respect to

whom membership f1 such organization has been denied or

_ terminated on some ground other .than his failure to tender

‘the periodic dues and the initiation fees uniformly required

as a condition of acquiring or retaining inembership ;

in the other case, ‘held that AGC had not violated the Act,

reasoning that the preclusion of future work te a pro- /

spective subcontractor in the circumstances did not Justify

the Board in holding that the rights of unidentified eny-

ployees of such prospective employer*weére adversely af

fected? . é,

—In-case No. 14298 we see no reason to, disturb the tind-

ings.of the Board hinging upon the ionitice exerted by.

the work stoppage, or the Board’s Judgment that the im-

_ pact upon the four employees flowed naturally from ‘the

stoppage. Moreover, we find no reason to disagree with

the legal conclusion of the Board that the specified vio-—

lations: occurred as a result. Accordingly the Bowrd’s re-

quest for, mforeement of that portion of. its order run-

ning against Local 3 will be granted. Case: No. 14406 must

necessarily stand or fall along with case No. 14298 he-

cause of the interrelationship of the activities carried on

~ between Local 3 and AGC against Musser’s emplovees. It

follows from our conclusion to enforce the Board's order

‘against Local 3 in No. 14298 that the Board's petition, for

enforcement of that portion of the order directed against

AGC, the subject matter of case No. 14406, must also he’

granted.: | . ee es Be |

AGC contends thee Board should have \ recognized that

when Mussef’s employees came onto the Travis job they |

came, into-a collective. bargaining unit, by reason of the

subeontractor’s ra Ogee by the We eae of

Local: 3 with AGC and were subject 0 its terms. In

support of this contention, it says that the. conditions.

—_ t

3In both cases the actual terms of the orders of the Board are

not cKallenged. aan ;

. existing among building and construction contractors in

the area, their employees, and the unions ‘ required this

in order to promote stability and industrial peace, the

fundamenta! purposes of thetAct, It anay well ‘be that

the industrial and labor conditions ‘in the locality warrant

a new approach bythe Board in formulating bargaining

units in the building and construction industry there, a and

that the-last word has not ‘been said in an evolving situa-

tion. But be that as it MAY” we take this case in its prese nt

posture. A bargaining ‘unit which would release the Miis-

ser employees from the unit fixed for them by the Board

‘had not been established. Loe fal.o's ‘bargaining agreement,”

noreover, Wis ‘not with. Musser ry it was with AGC, W het

the latter failed to comply* jt was within the epmpe tence

of the Board. to hold that Local 3, by striking agains!

“AGC, brought pressure to bear whicé a Re through as

~ diserimination against Musser’ ‘employees oe to their

membership in another labor organizations, and that AGC,

by suce aunbing to Local 5°s pressure, disc yaminate dag ainst

these same employees when it eausyd. them tot be sus:

pended from the Travis project Aor not ix. longing r to

Local 3. No ee to the proceydings contends th ut the

fs |

sL.oeal 3 complained to AGC that certain sections of the 1954

Agreement relating to wage ‘payments and payments info an em

ployee pension fund wepe not being observed with respeet te

Musser’s employees on/the Travis ; project. Loeal 3° sought a.

“grievance procedure’” ‘and when no action was taken it notified

AGC that it was “withdrawing” all - ivees represented by 1

on the project. Stibseque utiy Loeal, ‘and AGC established 2

Board of Adjustment to investigate pHa 3's complaints. The

Board ruled abat AGC had to take the necessary Means te insure

that work ov the project would he. in compliance with the 154

Agreement) Since it contained a provision that every subcontractor

would abide by the terms and conditions of that agree ment

e »

eee if . ; ‘ ;

vul ® ga :

strike Was protected by “section 13 of ‘the Act af it

amounted: to discrimination prohibited by section S.

It is ailso contended that no unfair. labor practice can

fund where’ the disériminatory action is against em-

ae other than those of the direct’ employer: “xpeciti-

cally, that AGE could not sbe found to have. Violated see.

tien S (a) (3) by terminating the employme nt of Musser’ s

employees, nor could Local 3 have’ been found to’ have

vislated section 8 (b) (2). by causing ‘that action, since

there was no direct employer-employee relationship -be-

tween, AGC and Musser’s employees. This position had

the eet of two members of the Board, relying upon

previous Moard decisions, The Great Atlantic and Pacific

“Tea Co.. 6 NLRB. 943-1956); Chited Association of

aaa n of the. Plumbing and Pipefitting Industry,

“116 N.L.R.B. 119 (1956), and language in NLRB rv. Den-

rer Ida. & Constr. Trades Council, S41 Us. 675. The

provisions of #he Act here involved, se e footnote 2. supra,

do. not read as this contention would construe: them, in:

contrast with language in other’ provisions.’ The terms’

used in the applic: ible provision “bear an interpretation

which Teaches ‘diserimination as to employees of another

employer. We must guard against giving this broad lan-:

guate a. scope which _includes employees w hose relation-

ship to the controversy Ix so attenuated as to cause their

_ to. defeat a sound administration * of the Act:

3$eetion 8 (a) (5) states that the emplover will commit an’

unfair labor practice if he refuses to/bargain collectively with

representatives of his employees, and: section & (b) (4) (B) pro;

‘hibits a labor organization from striking to forée or require ats

‘other employer to recognize the labor organization “as the re pre.

sentative gf his emp'ovees. . . .” (Emphasis. supplied. } See, also,

Austin Cmipony, 101 N.L.R.B. 1257 (1952).

vet the closeness of Musser to. the disput® leads us to

defer to the Board's.interpretation which brings its tour

cuiployees. within the “questioned protection, This ix an

area. of saver peta into which we should follow the

Board. NLRB cv. Hearst Public ations, Inc., 322 U.S. 111,

128-29; NLRB . Gluek. Brewing Co, d44 Fy 2d S47, S55

A Sth Cir: Neuabick

This brings. us to case No. 14466, w hiete the 1955 Agree-

ment zoverned the relations between AGC and Local 3. In

compliance ‘with. the subcontractor clause, AGC, in con-

trast with’ its previous conduct, declined this time to sub-

contract to Musser except in accordane e with the agree-

ment avith Local 3. The Board, again dividing, ‘held that

the ae tions of AGC and Local 3, in executing, maintaining,

and imple ‘menting the 1955 Agreement, did not add up to.

violations by AGC of sections: 8 (a). (1), (2) and (3) or

hy ‘Loe ‘ak 3-of sections’ S (b) (1) (A) and (2). This. is

heavily attac od as Incensis sjent with the ruling under, the

1954 Atereement: but there aye factual differénces, and we

“are constrained to support the deci ision of the Board that

these permit a different Jexal conclusion... Here AGC.

abided by its agreement with Loeil 3. While the result

might well” have heen that employees of? Musser were

denied ‘employme nt on AGC projects due to their aftilia-

‘tion withoa union other than focal 3, lead did not come

about as a result -of strike action. by Local 3, as found in

the other case, or by pressure exerted through AGY as

also there found, Dut hy a decision on the part of AGC

iit to. comply with ts aereement with local 3. Though,

as the Board sugeésts jm this ¢ Court, there was discrimina-

tion by one empire r, AGC, against another, Musser, the

Act stands aside in respect of such action, forbidding

discrimination only against employees. = :

We would not be well advised to substituie a judgment

diffe ent from that of, the Board. [t could lawfuils con

clude, as it did, that the rehationships between AGC rine

prospective employees of a prospective subcontractor were

xo attenuated that the refusal of AGC to award a sub

contract te Musser, and the existence, maintenance’ and

implementation of AGC's agreeinent with Local 3, did ot,

Constitute discrimination by either AGC or Local 5 against

employees, Ye

. -

The ordvr of the Board wel be enforre ed,

Appendix “B”

STATUTORY PROVISIONS INVOLVED.

| DEFINETIONS

See 2 When used in this Aet—

ily) The term “employer” includes any persen ating

as un agent of an employer, directly or indirectly, but

shall not include the United States or any wholly owned

(iovernment corperation, oF any Federal Reserve Bank,

corany State or political subdivision the reof, or any cor-

poration or association operaung: a hospital, ‘if no part of

the net earnings inures to the benefit of any private share-

“holder or gndividual, or any person subject to the Railway

Labor Act, as camended from tine to tune, or any labor

organization (other than when acting as an emplover), 0

anvone acting in the capacity of officer or agent of se

labor organization.

(33) The term employee" * ‘shall include any employee,

and shall net he limited to the cimployees of a particular

cunplover, unless: the Act explicithy states ‘otheravise, and

hall inelude any individual whose work has ceased as ‘a

consequence ol, of in connection with, amy ‘current labor

dispute or because of any unfair labor practice, and who

has not obtained any other, regular and substantially

equivalent employ: vent, hut shall net include any individ-

ual emploved asain agricultural laborer, or in the domestic:

cervies of any famely or persen at his home, or any in

dividual cmployed lw his gran ent or spouse, OF any individ.

ual having the st@tus of an independent contractor, or

any indivichual employed as a sHperviser. or any individual

employed by an‘employer subject to the Railway Labor

Act, as amended from time to time, or by any other. per-

son whe is not an employer as-herein detined.

(9) The. termi ‘abor dispute’* includes any contre

versy concerning terins, tenure or conditions of employ

ment, or concerning the association or Teprésentation. of

persons in negotiating, fixing, maintaining, chaneing, or

seeking to arrange terms 6r conditions of emplovinent,

“regardless of whether the sans stand in the: Prox

mate relation of employer or employ e. ape fae

0 RIGHTS OF EMPLOYEES

Kec. 7. Employees shall have the right to self-organi-

zation, to form, join, or assist labor organizations, to bar-

gain collectively. through representatives of their own’.

choosing, and to engage in other concerted activities for

the purpose of collect tive bargaining or other mutual aid -

or protection, and shall also have the right to refrain

fronr any or’ all of such activities except to the extent

that such right may be affected by an agreement requir-.

ing membership in a labor organization as a condition of

employment as authorizedan section 8(a)(3).

UNFAIR LABOR PRACTICES

Sec. S. (a) Tt) shai be en unfair labor practice for

an employer— |

ww fo interfere with, restrain, Or eCoOerce eaatoees

in the exercise of the rights cuaranteed in section.7

«2. to dominate or interfere. with the formation or

administration ‘of anv Jahor organization er eontribnte

. Se

rules and regulations made and published by the Board

pursuant to section 6, an employer shail not be prohibited

frou permitting eniplovees to confer with him during

‘working hours without loss of time or pay;

Ch) hv discrimination in regard to hire or tenure of

eluplovinent’ or any term of ecandition of employment to

nemirage or discourage mnelmbership in any labor organ-

ation: Procided, That nothing in this <Act. or in any

other statute of the United States, shall “preclude an em-

plover from making an agreement with a labor organiza-

tron (not established, maintained or assisted by any action

detined In Section S it) of this Act as ‘an unfair labor

practice) ~ require asa condition” of employinent mem-

le-rship the ‘rein on or after the thirtieth day following the

beginning of such employment or the. effective date of

such agreement, Whichever is the later. i) cif such labor

organization is the “representative of the employees as

provided ino section Gla), in the appropriate collective-

bargaining unit covered sby such agreeinent when inade:

and has ‘at the time the agreeiment Was. made or within

the preceding 12 months received from the Board a notice

of compliance with sections 9(f), Ley, and (h). and (i)

unless following an election held assprovided in’ seétion

Yo) within one vear preceding the effective date of such

agreement, the Board shall have certified that at least a-

nia jority ofthe « pile wees eligible: lo vote in such election

have voted to reseind .the authority of such labor organi-

zation to make such an agreement: P rovided further, That

No “employer shall justify. any diserimination ag rainst -an

enplevee for non.me ‘nbe ‘rship in.a labor ofganization VA)

if he has reasonable grounds for believing that such mem-

xiv ‘

bership was not available to the employee on the same

terms and conditions, generally applicable to other mem-

bers,. or (B) if he has reasonable grounds for believing

that membership was denied or terminated for reasons

other than the failure of the -emplovee | to tender’. the

periodic dues and the initiation fees uniformly required

as a condition of acquiring or retaining membership,

(3) to refuse to bavgain collectively with the repre

| a

xentatives of his emplovees, subject to the provisions of

section 9fa).

(by) Tt. shall be an unfair labor practice for al labor

organization or its agents—’ |

(1) - to restrain er coerce (CX) employees ins the exer

cise of the rights: guaranteed in’ section 7: Provided,

That this paragraph shall not impair the right of a labor

organization.to preseribe its own rules “with respect te

The acquisition or retention of membership therein:

(2) to cause or attempt to cause an eimplover cto dis

J . , ‘

‘riminate against an employee in violation of subsection

tad(3) or-to diseriminate: against an emplovee with re

spect to whom membership in sueh organization has heen

denied or terminated on some ground other than’ his

failure to tenderéthe periodic dues and the initiation fees

uniformly required as a condition of acquiring or retain.

ing membership

(3) to refuse to bargain collectively with an emplover,

provided it is the representative of his einplovees subject

to the provisions of section (a).

RE PRESENTATIVES AND FE LECTIONS

See. O(a). Represe ntatives designated or-selected for

-the purposes of collect ive bargaining by the mpgerity of

the employees in a unit appropriate for such purposes,

siall be the exclusive re presentatives of all the employees

in such unit for the purposes of collective bargaining .in |

respect to rates of pay, wages, hours of employment, or °

other conditions of employment: Provided, That any in-

dividual employee ora group of employees shall have the

right at any time to prese nt “grievances to their employer

‘and to have such grievances adjusted, without the inter-

vention of the bargaining’ representative, as long as the

‘adjustment is not ‘inconsistent with the: terms of a col-

lective-bargaining contract or agreement then in effect:

Provided: further, That the bargaining representative has.

heen given Opportunity to be present at such adjustment.

LIMITATIONS

. See. 13. Nothing in this Act. except as specifically pro-

vided for herein, shall, be construed x0 ax either to inter-

fere with or impedeor diminish in any way the right to

strikes or ‘tocaffeet. the limitations or qualific: ations on that’

right.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.