Petition for Writ of Certiorari — Local 1566, International Longshoremen's Ass'n v. National Labor Relations Board (No. 401)

F

2

3

i

i

3 j

rd he coal. ict Go!

Pa

ies 7

IN THE. :

Supreme Court of the United: States

October Term, 1960.

No. Br!

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

LOCAL 1566, INTERNATIONAL LONGSHOREMEN’S

ASSOCIATION,

Cross-Petitioner.

_CROSS.PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

ApraHaM E, FreepMay,

, Marvin I. Barisu;

1415 Walnut Street,

Philadlphia 2, Penna.,

Counsel for Cross-Petitioner.

International, 711 So. S0th St., Phila. 43, Pa.

INDEX TO CROSS-PETITION.

PPRICHIM -TIMEONE os cee che Ce cheek eee ee Cee ras Sees

URISDICTION ....... FONE RE TN ey ae Set

DEESTIONG PREREATOD oo oc so vng rn cccmbesevs igs cesses

SORTUCR FMUMOENOD ok 6nd boc ok ooh wink Cole teen rane

ravnnire on Se CAME Sc oc ees co ks a ee

REASONS RELIED Upon FOR ALLOWANCE OF THE WRIT ......

Point One: The Decision of the Court Below [s in bhirect

Conflict With the Decisions of the Court of Appeals

for the 7th Circuit in Lewis v. Quality Coal Corpora-

tion, 270 F. 2d 150; the Court of Appeals for the 2nd

Circuit in NLRB v. News Syndicate Company, 46

LRRM 2295, — BF. 2d a the Court ot Appeals for the

District of Columbia in Honolulu Star Bulletin, 2d. vy.

NLRB, 274-.F. 2d 567; the United States District

Court for the Middle District of Tennessee in Lewts v. :

Fentress, 160 F. Supp. 221 (1058), Waich Hold That

Deferral Language Contained in a Union Security

Clause, Which Permits the Operation of Phat Clause

to the Extent Allowed by Law. Qualities the Express

Terms of the Clause and Makes It Conform to Exist-

ing Law, and That a Collective Bargaining Agreement

Which Is, Therefore, Valid on Its Face Cannot De

Converted Into an Hlegal Hiring Agreement Because

of Alleged Discriminatory Practices Subsequent to the

Entry of the Agreement Spey URE en CES PET

9

CONCLUSION

INDEX TO CROSS-PETITION (Continued).

Point Two: The Decision of the Court Below Is in Direct

Conflict With the Decisions of the Court of \ppeals

for the District of Columbia in Carpenters District

Council v. NLRB, 274 F. 2d 564, and Honoldu star

Bulletin v. NILRB, 274 F. 2d 567; the Dectsion otf the

Court of Appeals for the Second Circuit in NLRB v.

News Syndicate Company, 46 LRRM 2295, — F. 2d

Page

~~ (1960) : and the Decision of the United States Dis- |

trict Court for the Southern District of Indiana im

l-vans vy. International Typographical Union, 81 F.

Supp. 675, Which Hold That Mere Membership of

Foremen in a Labor Organization Is Not a Sufficient

Basis for a Determination of Union Participation in

Improper Preferential Hiring by the Employer

Pe ee eee ee ee ee Re See ae ee ee. 66 eS SSS £0 6 6s. 6.6 08

a)

; CASES CITED.

Carpenters Oistriet Couneil.v. NLRB, 274 FL 24 S04 01. C.

moo .

MET CRIN) gh akan we awlcsw ce: Moreve wea. Bae area Io, IS, 20

ivans v. Pnternational Typographieal Union, SP FL Supp. 673

(S92. iehana, T9498)... Ge ere aie ks ke oe lo. 17, 20

Honolutu Star Bulletin Ltd. ve NERD, 274 BL 2d 307 0D.

Cae, Keene wa ies PH ORS ee A Mire Peg UE ST wo12,4

Lewis ve Fentress Coal & Coke Company, 100) FF. 221 (M.D.

. Tenn., 19338) affirmed 264 F.2d 134 (6 Cir. 1950) 200.10, 192, 14

Tiowts vo Fentress Coal & Coke Conipany, LOO) Is Supp. 221

/ a A aTy : : ae s

(M.1)., Tenn., 1958) affirmed 264 F.2d 134 06 Cir. 130)

; 10, 12, 14

NERB v. Jarka Corporation, 198 F.2d G18 ¢2 Cir. 182) 0... 1s

‘iRW vy. New Syndicate Co.; 46 LRRM 2295, — F.2d —

SPUN tee hee Fe ca Wetaea eee: Serger He 1S 1s 2D

NLRB v. Rockaway News Supply Company, 345 U.S. 71

(1852)

United Association of Journeymen and Apprentices at Phim)-

ing and Pipe Fitting Industry, ete. and J. S. Brown —

Ek. F. Olds Plumbing and Heating Corporation. 15 NURB

594 ° XQ

Universal Camera Corp. v. NILRR, 340 Ul S.474 200.2... at.

*

*

STATUTES CITED.

Dagre

National Labor Relations Act, as amended (OL Stat, 16, 29

. tS. ©. 15h seq.) | %

“Section TOA A oeisat rye inbetnnes sot eprapnnan ir eye 5 57

PRN rer erat, Cote toa es tC aed ee Par

Section 8(a)(2) ..2.. Ms Tere as SN EA ee ORR l

ot Me ha ee oe ee AE ROE ris CO BN Ree eT ea

Soe 2. Pt aleve sang ea a Adee Bid, Oe AN 9 ae een me Seyi

Gop BM os naan a ben aa ‘ Mo pert eee Reta eee a +

Ten Niaey Act eh ek CaO OO Fk oe Fe 1

Wagner Act of July 5, 1935, 49 Stat.“449, 20 UL S.C. 1S) 0... 10

“2 U.S. C: 1254(1) ; ?

“

a?

IN: THE

Supreme Court of the United States.

.

No.

Ocroner Teno, 1960.

NATIONAL LABOR RELATIONS BOARD,

. Petitioner,

v.

Lae’ AL 1566, INTERN ATIONAL LONGSHORE ME NCS

ASSOCLATION,

Cross-Petittoner

CROSS-PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

Cross-Petitioner, Loeal 1566, International Loneshore-

men's Association, respectfully prays that a Writ of Certio-

rari issue to review that part of the decision of the United

States Court of Appeals for the Third Circuit: entered in

the above entitled ease sustaining the National Labor Rela-

tions “Board wherein it ordered the Union to cease and

desist: from entering into or enforces TUpAs se Peetrremh ar

practice of preferential hiring except as antherized by See

tien Staj(3) of the Aet; from causing, or attempting toe

cause, Maritime Ship Cleaning & Maintenanee Company to

retuse employment to complainants, Marvin Gould) and

- k Page, or any other applicant, for non-membership in

- Union in violation of Seetion SCn)(2)s and from re

training and coercing in any manner employees or appli

cats for employment in the exercise of their right~ under

Section 7 of the Act, except to the extent authorized by

Section S(a)(3): and further in’ sustaining the Board’s

order to make whole Gould and Page for any loss of pray

_resulting from the discrimination.

‘>

Zé

a C reins Die bate fer al Wont ol Certtorare:

OPINION BELOW. .

The opinien of the Court of Appeals CLafra. p. la) os

repertedin te EAR Menor, pe (2-Cir, THO). Phe

findines of faet. conelusions of law, ane order of the Bosra

are reported at 122 NLRB 60.

JURISDICTION.

The deeree of the Court of Appeals (fifra, p. 10a) was

entered on .lune 14, ou Age jurisdiction ot this Court

is invoked under 2s 2 . 12541).

QUESTIONS PRESENTED.

. Where a union security clanse in a collective bar-

eainins agreement between the union and its employer:

contains a deferral clause making. the agreement valid on

its faee. cam such clause thereafter be converted Into at

Hecal hiring clause beeause ‘of subsequent discriminatory

practices on the part of the employer” s foremen? .

2. Can a unien be held — for the dicerinite tory

practices of a foreman merely because of his ime ‘mbership

in the union and without active participation on the part

ot the union? : , ; ‘

&

F

@ross-Petiteon for a Writ ot Certreriars 5 cae

STATUTE. INVOLVED.

The relevant provisions of the National Eater bh ihe

trotis Neto as amended (G1) Stat. Doe. 29 S20 bad et sedge)

are as follows: b a.

“See. 7. Employees shall have the right te self

organization, to form, join: or atssist laber organiza

tions, to bargain collectively through represdutatives

of their own choosing, and to engave it other concerted

activities for thé purpose of collective bargaining or

other mutual aid or protection, and shall also have the

‘ight to refrain frem any or all of such activities ex-—

cept to the extent that such right may be atheeted by

an agreement requiring membership ina labor organi

zation as a condition of employment as anthorized inf

section S(a-) (2).

| “See. 8 (a) It shall be an ginfair labor practice

for an employer—,

. , * « o

(3) by discrimination in regard ‘to hire or tenure

of employment or any term or condition of eniploy-

ment to encourage or discourage menuibership in any

inbor organization: Provided, That nothing in this

Act, or any other statute of the United States, stiall

preclude‘an employer from making an agreement with

a labor organization -(not established, Maintained, or

assisted by any action defined in scetion SG) of this

"Act as an unfair labor practice) to require as a eondi-

tion of employment membership therein or-carter the

thirtieth day following the beginnings of sneh employ.

ment or the effective date of such agreetiont, whichever

. is the later, (1) if sueh labor-organization is the repre-

sentagive of the employees as provided In Seetian ca),

in the appropriate collective-bargaining unit covered

by such agreement when made; and has at the time >

Cross-Pitition for a Writ of Certtorart

the vereement was made or within the preeeding twelve

thonths received trom the Board a notice of compliance

with sections (1), (2) th), ate

shy dt shall bean unfair labor practice for a

Leadon Oren Zt bon or its agents

“(2) te cause or attempt to cause an employer to

Useriminate against an @mployee in violation of sub

section (a) (2) or to discriminate against an et cloyee

(vith respect te whom membership in.sueh organization

Has becn defied or terminated on some ground: other

than his -faihure te tender the periodic dues and the

indtiatiet fees uniformiy required as a condition of

or vetuining memberships

“Section Ph ty

If upon the preponderance of the testi

rhony taken the Board shall be of the opinion that any

person naniat in the complaint has engazed*in or is

eyemcime imoauw osnch unfair laber practice. then th

Reocarel stiath state: its findings of facet and shall is=ue

and eutse to be served on such persen an order re-

coring such person to cease and desist from suelo’

anvair labor practice, amd te take such affirmative: ac:

tien ineliedime redustatement of employees with yr

ithont back pay. as will etfeetuate the poltetes of tire

AG. «-s . ?

+

(rass-]'¢ hilton for ] Voy ye ‘ ’ * oh rein) nw) ‘ y

STATEMENT OF THE CAS®.

The National Labor Relations Board browkht this ae-

mo hetere the Court of Appeals for the: Third Cireuit: for

erecmout of its order charging the Piternational Long-

rommon’s: Association, Local 160 with vielatinge Seetion

bielcdoanmd TON) of the National Labor Reliutions Net, 20

(. Tolet seq. Dy causing an enplover, Viaritime Ship

anime & Maintenance Company to discriminate aeainst

applicants for employment, Zack Pace and Marvin

Hd beearse of their non-meambership in the Leeal The

eure di not bring any charge aevainst the cmplover.

Maritime is omeated inmethe Dusiness of shin cleaning

tatenanee dn the Port ot Philaeedplia. sued ps mem,

root the Philadelphia Mirrine Trade Assoeiations an

miaition af employers Whose business oper; tions are

cheetet With the maritime incistey in the Port al Phila.

Malina. The Ussoehition meowetintes wed stuns colleetive

bendidnes aereements on behalf of its members, ineludine

ities With petitioner union as'well as with other labor

com izations Whose menthers are invelyed in Mapitime's

Hittes in the Port of Philwlelphia.

The collective bargaining agreements concern al in this

neowere entered into between the Philadelpht Marine

bade Association and the International Loneshoremen's

ssoehition om May 12. 1954 and September So, 1568. With

spees to the hiring proeedures, the agreement contained

© followin nnion security clause: ;

“Union Seeurity: As te any gad all work covered

romider, tinally determined by duly constitnte «Ll pub.

at Ssathortty not to be subject to any statute forbid ling

to preferential hiring provision, the emplovers agree to

iveapreference to longshoremen who are members ef

ie Union in good standing, As to all other work-the

ttuplovers agree to institute and maintain ao Union

6 Cross -Potittonstor a Wr of Certrorart

Shep as shall comply with Section Sea) (3) of the

National Laber Relations Aet or any amendment

thereto?’ j ,

Hirine at) Maritime ts effected by means of the

shape-up system. Men desiring employment report each

dav at Macitime’s place ag business where hiring foremen

Who are steady employees of Maritime select) from the

eromp reporting te the shape-up that number required to de

the available work. © These foremen are mensbers of ‘Local

Lotiti,

The complainants, Zack Page and Marvin Gould, testi-

thal that when-they appeared at Maritime’s premises the

foremen first oneaged: regular union members, Known as

shook omen’? and, secemdly, the probationary members

known ate tenrd men’) and. finally the hoen-union men.

Meritime’s foremen amd supervisors, on the other hand,

tectitied that they hired stevedores for the company on the

heats of the experience of the stevedores. They further

testified: that most of the experieneed men were union men,

anit <ines the work invelved was dangerous and required

chilbal Jaber. owperienced men were required, The trial’

eciminer determined that priority for employment was

eiven aceorling to union status, the applicants for employ-

ment falling into three eategories: (1) book men, who were

full teebcedl tm tnhers of the union: (2) ecard men who were

probationary members and who upon payment of dues each

month were given a-eard. With ?2 consecutive cards, and

the compilation of 700 work hours on the waterfront, a

car oiman becomes clistble tor fulltime union membership.

This, Sierefore, insures a certain amount of experience in

loitethore operations: and (3). those applicants who had

neither books nor cards. Page and Gould were both card

Piet.

On November 25, 1956. a waterfront. strike occurred

amd both Page and Gonld refused to do picket duty. The

cunion. therefore, eaneelled their status as ‘vard men. Both

C'ross-Pelition for a Woret of Certioneart +

cooplainants filed: unfair labor charges on Decentber 11,

O06, shortly after the strike terminated, alleging that they

core refused employment following the strike. Both com:

dainants, however, were unable to specity the dates on

Kifeh they were refused employment, and. the omptover

coords disclosed that they worked continuously, starting

tho the very first day after the strike ended until quite

tootitme after the unfair labor charges were filed. .

thy these faets, the beard concluded that the union,

Doh ts anton tiember-foremen. eanseck discrimination

hover of union members and therely vielated) Section

itepe2) aemel DON) of the Net. The Board advo conebaded

fothe unten seenrity: provisions im the Ti amb 197

Ontraets were dnvalid ame the unten trad aeni vielated

Seetion Sebpe2) and PON) of the Net doe nedntainine then

etfeet. Phe alleged invalidity of the aiitenm seenrity

Gseowas premised upon the Board's determination that

bo lan stase whieh purported to defer the clause granting

Pofopenes teoniot members contd met de etfected: hecanse

é. hitrine practice, according fo the Board, showed that

heotmerties never really intended to pestpene operation of

preferential svstem. The Boards contention im this

coord Was based solely on the faet that althouch the union

cecrity whaise was valid on its face. it wae te be rewarded

oan decal arrangement between the emplower amd unten

tiv beean-e of subsequent conduct of the foremen in the

hiner practices above deserthed.

There was ne evidenes whatsoever cither from the

harsine parties or fromiany other sotree shes tus that the

lien participated imo any respect im the diving of men.

boere Wis ancaburidanee of evidener that the Upton dtd

eet particnpate and that whatever the eriplover did. it did

eidtsownmtand not in cooperation with or with the knew!

poco gmed-ecotisent of the Union. .

The Board ordered the union te ecase Sai tlestst from

ring inte or enforeine ANY areetient ar practies of

ferential hiring and alse offered the uniea to make

a

whole Gould and Page for any loss of pay resulting from

the alleged diserimination; and further ‘to refund to all

employees of Maritime the initiation fees, dyes and all

other moneys unlawfully exacted from them as a price for

their employment for the period beginning six months prior

to the filing and serviee of the charges—the Brown-Olds

remedy (Cited Association of Journeymen and Appren-

fiers of Phanbing and Pive Fitting Industry, ete. and JOS,

Rrorn EBL Obls Phonbing and Heating Corporation,

1W5 NLRB of).

The Court of Appeals affirmed the Board's order; how-

eyeroas there was no evidence of coercion, the court refused

to entores the Brown-Olds aspect of the Board's order,

The National Labor Relations .Board has applied for

writ of certiorari, No. 285, Qetober Term, 1960, as to the ap-

plicability of the Brown-Olds remedy.

‘Cross-Petition for a Writ of Certiorart ‘y

REASONS RELIED UPON FOR ALLOWANCE OF. .

THE WRIT.

e ee

Point One: The Decision of the Court Below Is. in Direct

Conflict With the Decisions of the Court of Appeals

for the 7th Circuit in Lewis v. Quality Coal Corpora-

tion, 270 F. 2d 150; the Court of Appeals for the 2nd

Circuit in NLRB v. News Syndicate. Company, 46

LRRM 2295, — F. 2d —; the Court of Appeals for the

District of Columbia in Honolulu Star Bulletin, Ltd. v.

NLRB, 274 F. 2d 567; the United States District Court

. for the Middle District of Tennessee in Lewis v.

Fentress, 160 F. Supp. 221 (1958), Which Hold That

Deferral Language Contained in a Union Security

‘Clause, Which Permits the Operation of That Clause

to the Extent Allowed by Law, Qualifies the Express |

Terms of the Clause and Makes It Conform to Existing

Law, and That a Collective Bargaining Agreement

Which Is, Therefore, Valid on Its Face Cannot Be

Converted Into an Illegal Hiring Agreement Because

of Alleged Discriminatory Practices sca aaa to the

Entry of the Agreement.

The allegedly invalid union security clause contained in

the collective bargaining agreement between the union and

Maritime reads as follows:

“Union Security: As to any and all work covered

hereunder, finally determined by duly constituted publie

authority not to be subject to any statute forbidding a

preferential hiring provision, the emiplovers agree te

vive a preference in longshoremen who are members of

the Union in good standing. As to all other work the

employers agree to institute and maintain a Union Shop

as shall comply with Section S(a)(3) of the National

Labor Relations Act or any amendment thereto.”

10 Cross-Petitein for a Wret of Certiorari

The Board found that the ¢entract was iHegal. on iis

face, despite the deferral language therein. The invalidity °

of the clause was premised alternatively upon the Board’s

determination that the language which purported to defer

the clause granting a preference to Union members could net

be given effeet because it was thonght to be insufficient te

negate the illegal coercive force of the clauses and that as

the parties had been following a ** present practice’? of work

preferenee tn employment: to union members, the parties

never Teally intended to postpone operation of the preter

eneg system. ‘This decision of the Board, as affirmed }. the

Court of Appeals for, the Third Cireuit, ix contrary to the

holding of the Court of Appeals for the Seventh Cirenit. on

the preeise point in Lewis ¢. Quality Coal Corp. 240 Be 2d

140°(1959); the Court of Appeals for the Se ond Cirenit: in

NERS ti Ws Nuyudicate Co, 46 LRR Weed, —- Fe 2d

(1966); the Court of Appeals for the District of Columbia

in Honolulu Star Bulletin es NERB, 974 BF. 2b 567 (10D):

the United States Distriet Court for the Middle District of

“Tennessee in Lewis vr. Beutress Coal & Coke Co., 160 FF.

Supp. 221 (1958); and the decision of this court in NLL

:. Rockaway News Supply Company, 349 ©. S. TL (1952).

Under the Wagner Act of July 5, 1955, 49 Stat. 449, 2

U.S. (0151, the union and the employers were permitted to

‘nelude in their collective bargaining agreements so-called

“elosed shop’? provisions which required the employers to

give preftrence to union members, This particular provisien

was modified by the Taft-Hartley Act, 20 U.S.C. 141-19,

and in its place was substituted the so-called union security

clause. Following the enactment of the Taft-Hartley Act,

the labor unions anticipated that Congress myight make a

future amendment. to the act and return to the closed shop

provision or sonie madifieation of it. Necordingly, mos! |

labor unions, following the Taft-Hartley Act, have incorpe-

rated a provision into there collective bargaining agreements

similar to the one in this case, intending that if the hoped-ti

legislation should be enacted, then the preferential hiring

Cross-Petition for a Writ of Certeerrari a)

system can be immediately invoked thereafter. This was

the purpose of the language of the unien seenrity: clause

which is the subject matter at bar. The Board has attacked

this union security clause heretofore in different cirenits but

the validity ‘of this clause has been consistently upheld by

the various courts which have ruled upon it.

In the case of Lewis ¢. Quality Coal Corp, 270 FB. 2d 140

(7 Cir, 1959), which entailed an aetion by troasteestof a unien’

welfare and retirement fund against the cmiployer for

moneys assertedly due the fund under the provisions of the

ceolleetive bargaining agreements. the deferse of the em

plover was that the agreement was invalid in view of its

egal union security clause. Theelanse in that ease was aa

follows: :

eo Atgs further agreed that as a condition of em

ployment all employees shall be. or become peetiabers of

the United Mine Workers of America fo thee ctewt eed

in the manner permitted hay law > (Banaphiasis added.)

In reviewing the emptover’s contention, the Court off

Appeals’ held the union security clanse to be perfectly lewal,

and stated in this regard (p. 142): _ ; X

“Of course, without the portion italicized above the

provisions: of the agreement diere uider consideration

would violate See. 158.) Lewis ve Jiatekson & Squire,

D.¢., 86 F.Supp. 854. Tt would. withent reservation

or limitation as to time of joining, require union mém-

hership as a condition of employment. But the quality:

ing phrase ‘to the extent and in the manner permitted

by law’ expressly modifies and limit~ the application ot

the clause relating to union membership so that any

requirement it imposes is conditioned on conformity to

existing or future law. The provision of the agreement —

relating to union membership is thus limited and quali.

fied by its expressed terms so that if imposes ne require:

ment as a condition of employment-which would conthet

with 29 U.S. C. A. See. 158¢a) (2) or any other law.” .

AZ. Croxs-Petition fora Writ of Certiorart

In the case of Lewis v. Fentress Coal & Coke Company,

160-F. Supp. 222 (M.D, Penn, 1958) affirmed 264 BL 2d 14

(6 Cir, 1959) wherein the same union security clause was

involved as that involved ino Lewis rm Quality Coal Corp.

supra, the court ruled that the union membership provision

did not vielate a ‘Tennessee statute prohibiting contracts

maki union membership a condition of employment, mor

did it vielate the National Labor Relations Aet. Speaking

in termns of “savings clauses’’ the court ruled that the col

lective bargainiic agreement was perfectly valid. This

opinion was affirmed by the Court of Appeals for tht Sixth

Circuit, 0" ;

In the cage of Honolila Star Bulletin Ltd. ve NUERB, 274

F.2d 567 CD. C2 Cir, 1959), the Board found unlawful the

following union security clause :

oo * @ .

It is understood and agreed that the gen

eral laws of the International Typographical Union, in

effect January 1, 156, not in conflict with federal anid

territorial (state) Jaw or this contract, shall govern

relations between the parties not specifically enumerated

herein. - ( Mangolaasis supplied by the court.) i

The court reversed the Board on the basis that the unica

seourity’ clanse was not dlegal, and statesh in this regard cp.

“SO )s

“Seciion 2bee), as shown by the above quotation,

clearly provided: that the General Laws of the Union

in contliet with either, federal law or in’ the. contras:

itself were not included in the contract. A closed shop

provision would have been in conflict with the federal!

law and also in contliet with Seetion 2ta) of the con

tract. Any such provision in the General Baws wra-

exeeptod from inclusion in this -gontract, We do not see

how language could have been clearer.”

And, in the case of NLRB ve News Syndicat Compr

46 ERR 2295, vad — (1960), where the Board also >

ruled in view of a contract similar to that at bar that the

Cross-Petition fora Writ «ot CConlicnane I}

contract: was illegal on its faee. the court stated (LAR M

2298) :

aoe

“But we tind it Heeessai ey toy ree tee Parethien than to

overrule the Board's halding on the rs ssetimor cred on

‘the ground developed in’ dlonolatn Star Patletin’ ‘,

NwL. RL B. supra. See also Lewis v. Quality Coal Corp,

Cin, 270 F.2d 140, 44 L RRM e704. The facts of the

case here fall direetly Within the s: opecok the Pbonolulny

Star case: the contract hore containers nt exphient ileal

Union SCCULILY Clause ane did not Per port te iNearparate

egal provisions of the General Laws. but only those

Which were ‘not‘in eonfliet "°° With federal or state

law . t *#° 99

Finally, in NLRB ev. Rockawan News S cpl Cowpea,

nto, S.al (192), aounion member ( riplaves lived heen dis.

charged: for refusal to cross another's picket Hine. Te

cliirged the employer with an untair labor praction. The

National Labor Relations Board held the emplover ceilty of

ihe unfair labor practice and ruled that the no-strike pro-

Vision contained in the. collective bargaining contraet be.

tween the employer and the employee's anion, whieh barred

emiplovees from refusing to cross picket lines, Wis of he

feet because of the failure of the union SeCuTEY partion of

the contract to conform to the Labor Management Relations

Act, There, as here, the Board tenoved. the ‘savings’

“aspect of the security clause, The court stated in this regard

(pp. @8-79): :

‘The features to which the Board rightly objects

not only may -be severed but are separated in the con.

tract... The whole contract shows respeet for the law

and not defianee of it. The parties, who could not fore-

see how some of the provisions of the statute would be

Interpreted, proposed to vo as far toward union Security

as they are allowed to xo, and this ts their right: and

2

14 Cross-Petition fora Writ of Certiorart

they proposed te go no farther, and that is their-whole

_ duty. a

e t a

“The total obliteration of this contracf is not in

obedience to any command of the statute. It is contrary

to common-law contraet doctrine. It rests upon no

decision of this or any other controlling judicial author-

ity. We see no sound publie policy served by it.”’

Apparently recognizing the inherent weakness of its

original position, the Board buttressed the finding of the trial

examiner by asserting as an alternative basis of invalidity

that the finding of ‘*present unfair labor practices”’ by the

trial examiner created an inference that, despite fhe deferral

language in the union sceurity clause, the parties never

really intended to postpone operation of the preference sys-

tem, and thus the deferral language was ineffective. The

Court of Appeals agreed with this finding of the Board

stating: : 4

“This decision was based on the finding that, since

the parties immediately began implementing the‘prefer-

ential portion without regard to the deferral language,

° the claase was executed with the present intent to create

discriminatory conditions of employment.”’

In the case of Lewis vr. Quality Coal Corp., supra, this

assertion of the Board was squarely met and refuted by the

Seventh Cireuit. That court stated in this regard (}). 143):

“The validity of the agreement is not affected by

any conduct or.practice of the parties which would con-

stitute an unfair laber, praciiee under 29 U. S.C. .

See. 158(a)(3). At most, such conduct or practice, not

authorized by the agreement itself, would show that

the Unien and Quality violated applicable law. It

would not alter or change the terms of the agreement.”

In Lewis v. Fentress, 160 F. Supp. 224 (D. €. Middle

Distriet Tern., 1958), it was asserted, as it was by the Board

Cross-Petition for a Writ of Certiorari 15

here, that a union security clause which because of its de-

rerral language was valid on its face, was rendered invalid

by the subsequent actions of the contracting parties. The.

court refused to accept this obviously fall: lous argument,

and stated (p. 227):

fre At most the practice, not authorized by the

contract itself, would show that the union andthe cor,

pany violated the applicable law. It would not alter

or change the terms of the Agree nent which, as above

noted, provides j in effect that neither a closed shop nor

a union shop is required by the contract unless it is

in conformity with the law of the state where the con-

tract is to be performed. Neither does the Court regard

the practice as in any wise relevant in determining: the

intention of the parties as to the meaning of th «contract.

Mor the contract itself is not ambiguous. As the Court

construes its pertinent language, it plainly does not

require membership in the union as a condition of em-

ployment in states Waving statutes making sucha conedi-

tion unlawful. It is axiomatie that the paractisgl eon-

struction by the parties toa contract as shown by their

conduct is not considered unless the contract VY self is

uncertain or ambiguous in meaning." \

See alsa Honolulu Star Bulletin oc NURB, suprae

It is, therefore, cledr that the uriion security eharse bs

perfectly loval and the aetions of the emplover through its

azent foremen, if violative of the strictures set forth inthe

National Labor Relations Net, are at most eonduet or prac:

tee not authorized by the agreement itself. Certainly. this

clause cannot be used to impute anountate labor practice to

the union. Hf there is an unfair labor practicn it mist be

indyed by evidenee relating specifically. thereto and net by

the mio steurity clanse which is talid on its face.

16 Cross-Petition for a Writ of Certiorart

Point Two: The Decision of the Court Below Is in Direct

Conflict With the Decisions of the Court of Appeals -

for the District of Columbia in Carpenters District

Council v. NLRB, 274 F. 2d 564, and Honolulu Star

Bulletin v. NLRB, 274 F. 2d 567; the Decision of thé

Court of Appeals for the Second Circuit in NLRB v.

News Syndicate Company, 46 LRRM 2295, — F. 2d

. (1960); and the Decision of the United States Dis-

trict Court for the Southern District of Indiana in

Evans v. International Typographical Union, 81 F.

Supp. 675, Which Hold That Mere Membership of

_Foremen in a Labor Organization Is Not a Sufficient

Basis for a Determination of Union Participation in

Improper Preferential.Hiring by the Employer.

As an alternative theory, the Board concluded that the

union vieluted Section &(b)(2) and 1(A) of the Act) by

participating in the hiring practices at Maritime through

the Maritime foremen, who were union members. The

Board based its finding in this regard on Article XVI, See-

tion 22. of the International Union Constitution, which

states: ’

“Ny button other than the regularly adopted and

recornized LL. A. working and dress button shall be

recoznized in the hiring of men for work. Any mem-

ber violating this rule shall be fined in the sum of

s2.04,°°

and upow the fact that the forements union membership

‘without more’? was sufficient to impute their actions to

the union. The court agreed-with the Board’s determina-

tion. In this regard the opinion of the Court of Appeals

is in eonfliet with NLRB v. News Syndicate Co., supra;

Carpenters Distriet Council v. NLRB, 274 F. 2d 564 (D.C.

Cir., 1959); Honolulu Star Bulletin, Ltd. v. NLRB, supra;.

Evans v. International Typographical Union, 81 F. Supp.

675 (OS. D. Indiana, 1948), and with the evidence presented

to the Board. .

Cross-Petition tora Writ of Certiorari le

The record shows thaa the union played no part in the

ciiployinent of their members by the company. They did

not maintain a’ hiring hall, nor did the union supervise or

teurtieipate: in any manner in the employment of the amen

Which took place’ at the office of Maritime. The testimony

is clear that all hiring was done by the emplover'’s foremen

for the employer only, Each of the employer's foremen.

won incidentally were called by the Board, testified that

V hired according to their own diseretion and rere was

solately no arrangment between them and the union in

eonmeetion with the hiring of anion men. ‘The employer's

pevintendent testified that there was no understanding

bona the company and the union regarding the hiring

of unton men, ¢ that there had never been coercion of

heoetiplover or superintendent to prefer union men (Apop.

eo Purther, the superintendeat stated that the employer

hired noq-union men in substantial mumbe Is. In fact, non-

Mion men were at times hired when union men were avail.

able (App. 7b). Further, he stated that he knows of nd

instance Where a foreman was reprimanded or disciplined

by the'nnion for hiring non-union men (App. 7b).

Mr. Thesing, foreman for the emplover, testified that

‘here Was no understanding on his part that the union men

Were te he preferred inthe hiring (App. 1b), and that .-

even in the face of complaints by union members because

non-union men were being hired, there were no reprimands

tram the union and no pressure brought to bear to pre fer

uititon men (App. 13b).) The other foremen. testified simi

arly (App. ISb, 22h, 24-39)), The documentary evidence

aken from the files of the emplove r association signitic antl

“upport the foremen’s testimony.

Both complainants Page and Gould worked more hours

uring the vear in question than many union men. Gould

in fact worked more than the minimum requirement and

velved vacation pay (despite the fact that he was a reen-

* Union's appendix in Court below.

Is Cross-Petition for a Writ of Certiorart

lar employee of the Budd Company), while substantial

numbers of union men fell short of the minimum require-

ment (N. T. 193, 338, 240-352, 354).

Qn behalf of the respondent union, the secretary-

treasurer testified that the union did not participate’ in any

manner it hiring practices and that there were no agree-

ments or understandings between the union and the em-

plover in this regard. He further stated that no foremen

h ad ever deen disciplined or reprimanded for hiring non-

union personnel (App. 39- 40k). Despite this uncontra-

dieted testimony, the beard found that the employer had

engaged in a discriminatory practice and that the union

“nurticipated therein. Its sole basis was the fact that the

foremen were members of the union, and thus subject to th

union constitution, Which although ambiguous was deter-

tuined by. the Board. to require foremen ‘to recognize the

1. A. working and dress button in the hiring of men for

work. This finding’of the Beard was made, despite the fact

that the Vice President of the International Union, Mr.

dames T. Moock, testified that he had made it clear to all

local unions, including Loeal 1566, that they must not exert

any pressure OF require the « mployers to pre fer union men

(App..42b). He explained that since NLRB ov, Jarka Cor

poration, 198 FB. 2d 61S (2 Cir. 1952), all loe vale were told

that a non-union member has ous! employment rights witli

those belonging to the union (App. 42-48b). °The fore mie’

‘solved in this ease stated that they were unaware of the

union constitutional provision and had never been gov-

erned by it) ON. T.300-502).

Putting to one side the very serious que stien as te

whether or not the determination of the Board could with-

stand the tests ge forth in Universal Camera Corp.

VERB, 340 U.S. 474, the decision of the eourt below i-

contrary to a. -ereat majority of cases decided by th

various courts throughout the country.

In the ease of Carpenters District Council ¢ NLRE

OT4 FE. 2d 364 (D.C. Cir, 1959), the. Board found union

Cross-Petition for a Writ of Certiorari 19

partielpation “upon the presumed offeet of the foremiuin’s

obligation as a union member.’ The Court of Appeals

refused to enforce the Board's order, and stated in this

regard, (p. 566):

This view rests upon our analysis of the eon-

eressional, purpose in’ enacting See. 203) (and. its

companion provision, Section I4(a)) in M47. Con-

“ress Was aware of the potential conflict between the

obligations of foremen as representatives of their em-

ployers, on the one hand, and as union members, on

the other, Seetion 2(3) evidents its intent to make

the obligations to.the employer paramount. That pro-

Vision exeepts foyemen from. the protection of the

Act. [ts purpose was te give the emplover a free hand

to discharge foremen as a means of ensuring their indi.

Vidnal lovalty, in spite of any union obligations, See,

it. Rep. No, 245, SOth Cone., Ist Sess. 14-17 (1947):

oS. Rep. Neo. 105, 80th Cong, Ist Sess. 2-5 (1947): 1. A,

Young Spring & Wire Corp. ve National Labor Rela-

tions Board, 47, sz UL S. Ann. 2 C. S89, 163 Fo

O05, cert. den, 1948, 333 U.S. 837, GS S.-C't. G07. 9°

et. Ed. 931.

“In the absence of anv evidence to the cont rary, we

should assume that this employer preprogative dias had

the effeet which Congress contemplated. Therotore, we

are unable to uphold the Board’s conelusion that the

‘natural and foreseeable consequences? af Kanmoske's

statement to Adams was that Adams, because of his

union obligations, woukd ignore his role as a representa

tive of Miller and become merely a ‘medium: of trans

mission’ of Kamoske's order to Miller's emplovers”*

Further, in Honolulu Star Bulletin, Ltd. vr. NLRB. 274

F.2d 567 (D. C..Cir,, 1959), the Board, without success,

aw temptedk precisely the same tack whieh they emploved in

the case at bar. In summary, the Boaed held that the union

collective bargaining dgreement incorporated a closed shop

.

20 Cross-Petition for a Writ of Certtorare

provision which appeared in the general laws of the tic

national union. The Board refused to give any effect to

the deferral language employed in the union seeurity claus.

From this fallacious premise, the Board further reasoned

that since the shop foremen were members of the union ao!

had the power to hire and fire, and that they as member

of the union were bound by the general laws ef the union.

the union was guilty of participating in-any diserininatery

hiring practices of the employer. The court initially strick

down the Board's contention that the deferyal language in

the union security clause was ineffective, and then, ~_— ine

its reasoning and holding in(C'urpeufers District Counc!

NLRB, supra, found that the activities of the foremen whe

happened to be union members were not such as to erca

an inference of — participation.

In NLRB +. News Syndicate Company 246 LR Me ek,

—- F. 2d — (2 Cir., 1960), under facts sinter to those at bear,

the Court found that there was no presumption of law tha!

-a foreman would be guided by his union obligations ratle

than his obligations to bis emplover. The eourt noted that

the féremen's prime allegiance and responsibility wore ow

to his employer, and the court was unable to discover an)

reasonable ground of support for th® conclusion that th

hiring conditions vested the union with coutrel over th

hiring. ;

In Evans v. International Typographical Union, 31 F.

Supp. 675 (S. D. Indiana, 1948), a contempt proceeding wo

- brought for violation of a temporary injunction pending th

final determination by the National Labor Relations Bors!

on the charge of unfair labor practice, a claim was presen

that the defendant union sinee the issuance of the injunction

has pursued a course of conduct which caused employers |

discriminate against. employees in regard to hiring on 1),

basis of union membership. The Board claimed that 1!

violation occurred ftom provisions in the contraet re ayutiriig

that the foremen be members of the International Union om

Cross-]'t hition for a Writ of ("s rhierari on

‘that forctmen have exclusive jurisdiction over hiriny, super:

Vising and. discharging’ employees. In this connection the

General Counsel adverted to the oath in the constitution

Whichibinds all unionm members to: give preference to other

inion members, stating that this was the device Lypw hic ‘h the

respondents, were participating in the discrimination eon-

trary to the court's order. The court, in finding no union

activity, adopted the observation made by thg trial examiner

in lis intermediate report and stated (p. 684): — -

*** \contraetua! andertaking-that foremen be mem-

bers of a union-is not contrary to law unless the em-

ployer is restrained or coerced inte agrecing to it,

Susaciie it is not.to be inferred in the absenee of other

proof that the employment of union foremen opemates,

Without more, to establish closed shop or preferential

hiring conditions i in Violation of Section S(a) (3)

In failing to find any participation on behalf of the

inion, the court commented, ‘The faet should not be ower

looked that the foreman is s¢leeted by the muiployer ane is

‘he latter's subordinate.’’

It is clear, therefore, that the Board's finding that the

Nien pariicipated-in ang unfair labor practice, whieh is

winittedly not supported by the record, cannot be sustaine:d

as athatier of kaw, in view of the overwhelming deeitions to

the contrary inthe varions eiredits. Neo valid inferences cal

heelrawn aeainst the union because of the union memln ship

the Poremen, . .

.

CONCLUSION.

Try the abse nee of evidemes to prove NEON py irtie iporat ion

han alleged unfair laber praction, the Board resorted te

<umptions based solely on the union seeurity clause and the

Woon membership of the foremen. The same clanse which

lices Toevere De sdel i leecesal by the Court below has been held calid

-by other Courts of, Appeals. That clause will be found in

_- haa Cross-Petition for a Writ of Certiorart

most collective bargaining agreements around the country,

all of which will be vitally affected by the decision of the

Court below. Moreover, it is also common practice for fore

men.to be members of the unions while representing thie

employers. The inference which the Board has drawn from

this fact will likewise have the most serious and widespread

repercussions.

Both inferences drawn by the Court below are in conthes

with the decisions of other circuits. Under the eireumstane >

it is essential that this Court grant certiorari and fix the rub

for a uniform application of the law.

Respectfully submitted,

ApranamM BK. Freenman,

Marvin TL. Banitsu,

Counsel for Cross-Petitiow ?.

APPENDIX.

Usirep States Cover of Appeans ror rae Tram Crees i"

No. 12,903

NationaL Lason Revarions Boanp, Peririoner,

v.

+ é

Loca 1566, [srenxarioxnan Loxosnone MEN'S ASSOCIATION,

RESPONDENT,

y sre

Os Perition ror EX rorcemMeENT oF AX Orpen or tig Nation at,

Lanor Revations Boarp

Argued November 16,-1959

Before Bicus, Chief Judge an Goopuren and MeLacciuiurs,

Circuit Judges, °

eee

is Opinion of the Court

(Filed May 4, 1960) ,

By MeLavaunix, Cireuit Judge.

The: National Labor Relations Board (Board) seeks

cnforeement of its order, pursuant to Section 10(e) of the

National Labor Relations Act (Act), 29 U. S. C. Section

lol et seq., against the respondent, Local 1566, International

Longshoremen's Association (Union). The Board found

that the Union violated Section S(b)(2) and (1)(A) of the

Act by causing an employer, Maritime Shtp Cleaning and-

( Ta)

. . @.

2a Opinion of Court of Appeals

Maintenance Co. (Maritime) to discrimifate against two

appleants for employment, Marvin Gould and Zack Paze.

because of non-membership in the Union; by participating

‘na discriminatory hiring practice against non-member ay

plieants; and by maintaining in effect, in the collective bar-

gaining agreements of 1934 and 1057, unlawful anion see i

rity clauses. The Trial Examiner held that the 1957 aggre:

ment only was unlawful for failure to comply with the filing

requirements of Section 9(f); Gg) and (h) of the Aet, but

the General Counsel conténded and the Board found tha

both contracts were unlawful apart from any consideration

of filing.

The Board ordered the Union to cease and desist frei

‘entering into or enforcing any agreement er practice of

preferential hiring except as authorized by Section SG) to!

of the Aet; from causing, or attempting to cause Maritim

to refuse employment to Gould and Page, or anyother ap

plicant, for non-membership in the Union in Violation o!

Section 8(a) (3); and from restrdining or coereing in at)

other manner employees or applicants for employment int)

exercise of their rights under Section ¢ of the Net. exeept ©

the extent authorized hy Section S(a)(3). The Board al-

ogdered the following afirmative action: To make whe.

" Gould and Page for any loss of pay resulting froin the a -

crimination and to refund to the employees of Maritinne §

initiation fees, dues and all other monies unlawfully exacted

from them as a price for their erfiployment, for the per

beginning six months prior to the filing: amd services of

charges (commonly referred to as the ** Brown-Olds Rule)

Hiring at Maritime is effected by means of the * shay

up’? system. Men desiring employment report each diay

Maritime’s place of business where hiring foremen, em

ployees of Maritine and themselves union members, sel:

from the group for whatever work is available on thet i

The Trial Examiner determined, and the evidence se

tablishes, that priority fer employment Wits eiven aecordss .

Opin of Cont oof Appeals i

ho union status, The Wppliesnuts feDD treten threes ccats rotbes:

Ob) Bookanen, who were full thedied micnebers of the unien

wind Whe, pom pavintent of Uitessreeeivedd am tbertiin ation

luttion, differently colored) for leneli month tl) Cured men,

Hot tiembers of the Union but who. pom pavrrrorrt ef talues?

ich month, were given a eard. | With twelve eeneeeat

reds and @omipiling COO work henrs om the waterfront. a

ot rom-beeomes ehyible for full anion recreate rship, (3)

Phos applicants whe had neithor books nor eards. Priority

vias attlevegatered aecording to these categories, Imwok mom ret

oVing preferences and ipom exhonsting thes searel noon ced

itive af NN jobs remrinesh, the fast ols.

Gonld and Page were card aien, beat ine Dees rite Tb

‘Pron, thronuh it~ Seer: uns Vreasarer. pet PDs ASH

horrcenrds tafong w ehh sere 7 Ter Mb eotbae true) de elise

they had mot pieketedl during a strike whiehearenrncd cant

tad November 1046, Snubsiquent to their bringing charges

Thooparties were imfortnedd thet this Ube draed resetebged its

refusal te issue the eafils. However, neither aeain soit

Henn, : -

The Union resi<ts enforcement of the Board’. order’

ei the g@ronods that anv discrminwors hitiog a ae

Maritime were the anilaterad action of Weritime *s hiring

vomen and there was insuMeient ovidener te sappert a

‘eting that the Union participaced therein: ame the onien

sorority clanse in the colloetivt Bargsining aerectie nts was

hetounbawful simee at was couelrab im terms ef oa Pid be. 9

er deferral’ clause. The Uniew also contest. the Board's

appleation of the Brown Olds Ralet* in its remedy,

The Union does not question. and we shall not eonsider,

The finding that it was unauthorized te make a inion oe Wity

eoutraet im 1957 for failure te Comply with Section if), C2)

dt chdoof the Net, nor the denial of its motion. at the hear

bY. for prodnetion of mame. ane prehearing statetnents

of Witnesses,

This court has reviewed the whole reeomd and eonetudes

Heber ps sbstantial evidence to “Hp pert the Pare’ fineliners,

Sieh findings therefore are conelasive and will net be die

ta Opinion of Court of Appeals

jurbed. Universal Camera Corp. vy. Labor Board, 640 ee

474 (1951). ‘ :

ee I

Union Participation

The hiring system was based pon the unio status of

the men shaping-up——that is whether they had buttons,

ecards or neither? —and it’ was the Union who determined tha:

status and either issued, or refused to issue, a button or a

ecard. When some nine to twelve card-men, including th

complainants Page and Gould, did not watk a pieket Tn.

the Union refused to issue them cards. This action migtt

have been meaningless as a disciplinary measure if th

Union had not been completely aware that without a ear,

employment opportunity wits greatly reduecd under Mar

time's hiring practices. The constitution of the Interac

tional provides that only the regular HA battens “sabia

recognized in the hiring of men for work’? and provides a

penalty for violations. The constitution Was supplemien'cs

on the local level by the collective bargaining agreeme:

calling for hiring preference for Union members.!

1h }

‘i

The sum of this is a cleareindication of a Union police:

or practice of preferential hiring. The Trial) Examin

held:

oe * * thet where the ¢ireumstances disclose the estab

lishment or Imposition of a discriminatory hiring per

by or for a local union, that union may be held respon-

sible where discrimination is a proximate and fo

seoable consequence of the operation of the potiey. ace

Giserimination in fact results. This is not to dmypess

upon the local responsibility for programs or eondie

over which it has no control, It is merely te dield i!

accountable fer its own action. It the local wishes ‘)

avoid liability in such situations there are effec

methods by which if may disavow the offending polices

1 The “deferral” clause of these agreements is discussed |

Opinion of Court ot bpp als it

At the hearing, the Union attempted to rebut this evi-

dence with testimony that the hiring foremen were ated

aware of the clause in the International coustitntion. The

Examiner did not credit this testimony sinee only one of

the five foremen would, so testify. Testimony that the local

was orally advised by the International that the hiring

Janse in the constitution was not enforced gine that locals,

(

any event, have blanket authority to ignore any provision

nthe constitution which they deem: illegal was considered

“neredibte’* by the Examiner in the teeth of evidence that

other provistons are followed and enforeed, particularly a

-pecifie method for dealing with the, problem of illegal pro-

Visions. Ne! the constitution itself declares mull and void

any doeal by-law in contliet with the constitution. "The ques

tio af credibility, of testimony is within the Trial By-

aminer’s domain, ‘'* * * itt is not our task to resolve

ivstions of credibility of those who testify at the Board

hearings.”? NationalsLabor Relations Board v. Local 420,

ete, SF. 2s, S2R. (3 Cir. 1956).

The Utnon attempts, to mitt the Examiner's tinding hy

averring that union participation in unfair practices must

Ins proved hy direet evidence. We are of the opinion threat :

this is erroneous. Ttis true that many of the cases cited by

the Board in Support of its position contain indisputable

eVidence that the offending union formally reanested ar de-

manded that the company follow a diserininatory hiring

practice, See eg. National Labor Relations Board ve Local

Hete,, 240 BF, db So 0) Cir, 1560): National Labor Rela-

tous Board ve Loeal 420, ete. 229 FL 2d 827 03 Cir. Phot).

Bait these decisions do not establish di minimum standard for

nding union participation. Infact in National Labor Rela

tions Board vo Local obi supra, gt oFd, this court stated:

“The absence of proof that the Union specifically reatested

the Company to diseriminate is not eritical where there is

~abstanfial evidence to Support the finding of a diserirvina

‘ory Riring arrangenient actively participated ino by the

ee

Ga Opinion of Court of Appou's “

Union.’ The Board may, as it did here, draw a reason

inference from the believable evidence. Tt must, of conte

he supported by substantial evidence but an inference as

such isnot proseribed by the Aet. This has been settled fe

Radio Officers v. Labor Board, 347 Us S. 17, 48.02 Ci

There, union participation was proved but the untae prs

tice, encouragement of union membership, wis inferred fy

the Board. The Court, in upholding the Board said at pas

oo: ’

“Since encouragement of union membership ts ot

ously a matural and foresceable consequence of ans

employer discrimination at the request of anion, the-

employers must be presumed to have intended such en-

conragement, Tt follows that it was emimentiv rease

able for the Board to infer encouragement of tty!

membership

. @.. 8:92

.

Conversely, the unfair practicn beim proved, the Bact

may make a reasonable inference from all the evidenee tha

the Union participated ia such practice. The unfair bee

practice can be found from a procedure which shows an

tice or understanding though it may not establish amexpy >

contract between the parties’? National Labor Relation

Board v. Loeal 420, supra at Soe |

The Union's eontention that direct evidence, rather ™

rinference, is necessary to implicate it in the unfair pres

is set at rest by the following language in Radio Offecr-

supra at 50: ‘

“There is nothing in fhe danguage of three cametieden

[Taft-Hartiey] itself that suggests denial to the De.

of power to draw reasonable inferences, It is ines

ecivable that the authors of the reports [Tons Repo

on Taft-Hartley} intended sueh a result, for at

finding body must have some power to decide whew

inferences to draw and which to rejeet. We therete:

conclude that insofar as the power to draw reasonate

2

Opinion of Court of Appeals Ta

inferenees is concerned, Taft-Hartley did not alter

prior law.”’

The testimony in this instance is sufficient to support

the resulting inferenee of the Board. Whether this court

would have arrived at the same result ix of no fuatter. Our

review ts limited to the sufficieney of the supporting evidence,

Universal Camera Corp. v. Labor Board, 540 U.S. supra, .

fxs,

II Sy

Union Ne ] uritu Chavis

We tarn now to the legality of the union eourity clause

contained im the collective baurecigininsgy te reemiecnts between

‘he Union and Maritime. Dt reads:

“Usios Seevniry: As to aay and all work covered

hereunder, finally determincd by duly constituted public

authority, not to be subject to any statute forbidding a

preferential hiring provision, the employers awree te

vive preference ftoomen who are members of the Union

in good standing. As to all other work, the employers

agree to instituie and muiintain a union shop as shall

comply with Section Siaje3) of the National Taber

Relations Net or any amemlment thereta.”’

The Board found that this elanse, in both the 1954 and

le avrecments, was ilfegal despite the Geoferral lanenage

therein This decision was based on the finding that, inte

he partios immediately began implementing the preferential

‘portion without regdrd ¢o the deferral lanwuawe, the elise

> oxeented with the present intent to create discriminatory

conditions of employnient. .

The Union counters that a collective bargaining agree-

Ment valid On ifs tes cannot be converted into an illewal

hiring clause beeause of subse quent discriminatory practices.”

This argument can be-dismissed as not meeting the issue.

The Board found that the agreement was wet calied im feet,

Pony ifs cory hyee prion, It cannot be seriously argued that

Sa Opinion of Court of Appr als

the mere recitation of Words tn a proper and accepted forn

ean throw a blanket absolution over itewal aets presen! |

performed under a ehinse, gneluded in a contract, pou

portedly to covez a future possibility of legal sanction.

Finding as we do, it is unnecessary to disenss the is-

“whether the clause meets the requirement of ‘telear and

unequiveeal’’ set forth in Lewis v. Quality Coal Corp. 2)

F. 2 140 (7 Cir. 1959). “However in passing, it should be

pointed out that the clause involved, in both micanins i!

clarity, is a far ery from the one discussed ins the Lew

opinion. ,

il

The Remedy.

The sole’ remaining problem is the Board's application

of the **Brown-Olds Rule."* In a recent decision, Nationa

Labor Relations Board v. American Dredging Company,

F.2d (3 Cir. 1960), this court declined to enforce th

rule against an employer who neither dominated the wus

nor colleeted the fees and dues. Further, there was no ©)

dence in che reeord indieating that employees were requir

to join the. union as ‘a condition to obtaining employes

Requiring the employer in that situation to reimburse f

and dues paid to their union would be a windfall for?

employees, and in no way effectuate the purposes of th

Act And in National Labor Relations Board ve. Uae

States Steel Corporation (American Bridge: Division)

Local Union 42, AFL-CIO, F.M (3 Cir. 1960),

have continged to insist that the reimbursement order tit

be limited to employees shown to have been courced. And

emphasize that in. such alleged instances it is necessary’

produce evidence of coercion as to each individual concer

_ing whom it is asserted, Since the record before us furnis! >

no proof of that type we are forced to refase the part of 1h

Board's order allowing reimbursement to employees te

fees and dues they had paid. Regarding Marvin Gould an.

°

Opiiion of Court of Appeals a

Zack Page, they are fo be made whole for any loss of pay

incurred by them as a result of the discrimination against

them above stated,

The Board's order will be enforced except as to Para-

graph 2(a) thereof which will be stricken.

The notice called for by Paragraph (e) of thie Order

Will be amended by striking ont its last paragraph. A decree

in accordanee with this opinion may bessubmitted.

la ® Decree uf Court of A pepe als

Vexirey Srares Court oF Arreats ror Tue Tran Cite

No. 12,903

Nartoxa. Lanok Revations Boar, PETITIMNER,

v.

Locab 1d66, TN ree xarton al, LoNasttere MEN '’s JAssochirt

RESPONDENT.

Decree Enforcing in Part and Denying in Part an Order

the National Labor Relations Board

Before: Pinas, Chhiet Fila ania Cpcmoparbe yt snd Mi Lavi ‘

(ure uit Juda S. .

This Cacsr eae on to be heard npon the petition

the National-Labor Relations Board to entoree itstone

dated January 16, 109. “Phe Court heared argumen!

respective counsel en November 16, 150, and has consides

the briet’s and transeript of record filed in this cause. |

May 4. 1960, the goourt being fully advised in the prem:

Hattidend clown its Opuntan enforcing in pean and settings a

iu part, the Board's sited Order. Tn conformity the:

it is hereby

Oenenep, Apatpere axp Deerrep by the Lonatedd Ssta

Court of Appeals for thre Third Cirenit: that Respond

Local 1506, International Longshoremen’s Assoctation,

rs, representatives, aienits, suceessaors ane assigns st

1 Cease and Desist from:

a) Giving effect to, entering into, remewine, magi!

aereemnent, arrangement, nders'

Decrees of Canurl «al Lppeals lla

Ing or practice with Philadelphia Marine Trade Association,

Vayitime Ship Cleaning and Maintenanee Co, or any othes

member employer of Philacelphia Marine Trade Associa-

lion, requiring employees or applicants for Tanployvmegt. to

be or become members of, or to obtain clear Heer approval

trom, the Respondent Uniow as a condition of emp Lovtrent

excep as authorized hy Section Staves) of the National

Libor Relations Net (hereinafter ealled the Net),

(b) Causing or attempting to enuse Maritime Ship

‘Cleaning and) Maintenanee. Co. to retase eniplovinent to

Marvin Gould and Zack Page because they are not members

Of or have not secured clearanee or approval’ trom,’ the

Respondent Union in violation of Section SC) (3) of the et,

Take the following affirmative action which the

Board has found will effectuate the polieies of the Net,

(a) Make whole Marvin Gould and Zack Page for any

loss of pay incurred as a resul? of the diseringination against

them in the manner set forth in the seetion of the Trial

Examiner's Intermediate Report dated January 16, 1408

entitled **The remedy,"’ ad

(h) Post at its offiees in Philadelphia, ela a

and all other places where notiees to members are ens

tomarily eatek copies of the giotice attached hereto gnd

Synge Appendix’ Copies of said notice to be furnished

by the Regional Director tor the Fourth’ Region (Philadel.

phia, P eunsylvani: a) shall, after being duly signed by repre

“entatives of the Re ‘spondent, be posted immediately upen

recelpt ther ‘oof and maintained for sixt ¥ (60) conseentive

days thereafter In corspicnons places, inching all places

Where notices to members are enstom: iniiv posted. Reason.

thle steps shall be taken by the Respondent to insure that

said’ hotices are not altered, defaced, or covered by any other

material, |

(c) Mail to th aforesaid Region

copies of the notice marked ‘* Appen LiN

Maritime Ship Cleaning and Ma

"

irrteriaanice 4

willing, in places where notices to employees

customarily posted,

employees are

(dd) Notify the said Regional Direetor ty writing within

if this Deere what steps the

ten (10) days trom the date «

therewith.

Respondent has taken to comply %

By THE COURT,

(S) McLavenns,

Circuit dwlae.

1). June. 14, 1ov