# Petition for Writ of Certiorari — Local 1566, International Longshoremen's Ass'n v. National Labor Relations Board (No. 401) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0594%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1960 ## Text 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 (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 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0594%3A2. Public record. Not legal advice.