Petition for Writ of Certiorari — National Labor Relations Board v. Local 1566, International Longshoremen's Ass'n

She Supreme Goro he Wied ites a

OCTOBER’ TE RM, 1960

| National Labor Re_ations Buanv, PerrrioNen,

4 9 Fg Se F A v. ; :

‘Lecat 1566, INTERNATIONAL LONGSHOREMEN 's

ASSOCIATION : -*

"PETITION FOR A WRIT OF CERTIORARI TO THE’ UNITED

_ STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

STUART ROTHMAN, ,

eneral Counsel, ° ,

DOMINICK L. MANOLI, .

Associate: Generak Counsel,

NORTON J. COME,

Assistan?’ General Counsel,

? ‘~ :

pit 5 Daye STANDAU E. WBINBRECHT,

Attorne,,

National Labor Relations Board,

“ Washington m * C.

ser _ - , —— ‘Eee <

®

"

( - : >

INDEX a

pee Page

NE MN no wc wees ine cane nits veehes och esters Paina |

Jurisdiction ..... ee a eee ee rc ee Ie Se ae

Question presented............... Teoh tas AA ONG

Statute involved ..... cataaek manatee [ROA ENO OR Sees ae

Statement ae re ee Moaenes oP re aS ak Ee Ne

A. The Board's findings ........ rrr y ES Sere. 4

'B. The Board’s conclusions and BN cw kc aihicha-s Bae 0s 8

C. The decision of the Court of Appeals................. 9

Reasons for granting the wih... <<. ee aaa ec bas 10

eee ere ye Seer Wikctiektenbedeneanenes me

-Appendix ..... assisted aN aNaw be eae saad cage e-< ek ee

: ~ ‘ | :

a s . :

CITATIONS. — et

Cases: . oe ee,

Local 60, United Brotherhood of Carpenters v. National ,

Labor Relations Board; No. 68, this Term..«............ 10

a National Labor Relations Board v. American Dredging

iy Ce, OU Bs WN ED vic ceccccassceavssucScass i)

National Labor Relations Board v. Local 357, Interna-

tional Brotherhood of Teamsters, No. 85, this Term..... 10 -

National Labor Relations Board v. United States Steel

Corporation (American a Division), No. 228, .

this Term, pone Ahaha Knee eens Ske vues dake des 9

Statutes: _ : hie eal

National ‘Labor ke! ations Act, as amended (61 Stat. 136,

: 2 USC. 151, et seq.):

NE citierddvauaecuauodtGc. Che aEe ea <as 6 2, 9

Section 8(a) ....:..... pe iiebees pivaNak cass kee 2

NINGED een ncQeseeccpee deci eccie, 1% 5; 9

; Section 8 gee vee Di Eee eS %

Section: 9(f), |e” Sn ne ws. 6

Section 10(c) :..:........ LON <P OA aE pena

Neca cce ude uiode cus cere as cy hip eae 5

; (1)

a

_—

Inthe Supreme Court of the Winited States

: = OcTuBER TERM, 1960 oe |

NE ee - NO. . ,

NATIONAL LAaBor RELATIONS Boate, re rerionen,

Local 1566, INTERNATION aL [> cate WEN'S

Assen TATION

PETITION FOR A WRIT OF Cf RTIORARL (0 THE UNITED

‘STATES COURT OF APPEALS FOR THE THIRD CIROUTI

The .National -Labor “Relations Board prays that’ a

writ of certiorari issue to review that part of the de-

cision of the U nited States Court of Appeals for the

Third Circuit entered i in the above entitled ¢ aseon May

4, 1960, which denies’ enforcement of the reimburse.

“ment provisions of the Board's order,

. OPINION BELOW

The opinion of the Court, of Appeals (Appendix,

pp. 12-20, .jufra) isnot vet reported: The tindings of

fact, conclusions of law, and order of the Board (BLA,

2a-36a) ' are reported at 122 NLRB 967, iS ot

“B. AC ‘voleneniad are to the appendix to the brief of the Board in

ma court below. !

(1)

9

JURISDICTION

The decree of the Court of Appeals ( Appendix

pp. 21-25, infra) was entered on June 14, 1960. The

poms tion of this Court.is invoked tinder 28 U ‘S. C.

204(1). |. .

QUESTION PRESENTED.

‘Whether the Board, as a remedy for an arrangement

hetween the employer and the union which unlawfully

‘conditions preference in hiring upon union member-

ship, may require that the.employees be reimbursed

for all dues and assessments which they paid to the

union ander that arrangement. |

STATUTE INVOLVED

~The relevant provisions of the National Labor Re-

lations Act, as amended (61 Stat.136, 29 U S.C, 191,

et seq. dy are as follows:

Sec. 7. Employees shall have the. Highs to self-

oFganization, to form, join, or assist Jabor organi-

bations, to bargain collectively throug representa-

taves of their own choosing, and to: ot ld in other

concerted activities for the. purpose of ‘colfective

bargaining or other mutual aid or protection, and

shall also have the right to. refrain from any or all

“of such Xctivities except to the extent that such’

right niay be affected by an agreement requiring,

membership in a labor organization as a condition -

of employment as authorized in section 8(a) (3).

See. 8 (a) It shall be an unfair labor practice

for an employer— .

+ * * * \*

(3) by discrimination in regard to hire or tenure

‘of employment or any term or condition of employ-

By

ment to eneourage or discourage membership in

any labor organizaticn: Provide d, That nothing in

this Act, or dn any other statute of the United...

States, shall preclude“tin ¢ inployer hone making an.

agreement with a labor organization (not estab-_

-lished, maintained, or assisted by any action de-

fined in section. 8(a) of this Act as an unfair labor

. practice) to require as a condition of employment

membership therein on or after the thirtieth day

following the beginning of such employment or the

effective date of such agreement, whicheyer is the.

later, (i) if such labor organization is the: repre-

sentative of the employees as provided in section,

9(a), in the appropriate collective-bargaining unit.

covered by such agreement when made ; and. has at -

the time the agreement was made or within the

preceding twelve months received from the Board

a notice of compliance with sections 9(f). (Cy),

(h), * * * :

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

labor organization or its agents—

- (2) to cause or attempt to cause an employer to

discriniinate against an employee in violation of

subsection (a) (3) or to diseriminate against an.

- employee with respect to whom member ship in such

oid

organization has been-denied or terminated on

‘some ground other than his failure to tender the

periodic dues and the initiation fees uniformly re-

aN

4 Sn ars

quired as a condition of acquiring or retaining

membership ; sadn Silas fe

* . *— * .

Section. 10. * * *,

(ce) * * * If upomthe preponderance of the testi-<

mony taken the Board shall be of the opinion that

any person named in the complaint has engaged

in or is engaging in any such unfair labor practice,

then the Board shall state its findings of fact and

shall issue and cause to be served on such pérson

an order requiring such person to.cease and desist

from: such unfair labor practice, and to take such

affirmative action including re instateme nt of em-

ployees with or w ithouat hack pay, as wille ‘five ‘tuate

the policies’ of this met: oe

‘. .

STATEMENT

- A. The Boards F indings

— Buploynient ot longslioremen by the Maritime Ship

C Cleaning and Maintenance ¢ ‘ompany, an enterprise en- °-

gaged in ship cleaning and maintenance at the Port of

Philadelphia, is handled in accordance with the’ pro-

_ visions of contr ‘acts entered into betw een the Philadel-

phia Maritime Trade Association, representing ‘mari-

time industry employers including Maritime, and the

International Longshoremen’ s Association and _ its

locals, including Local 156 5 (B.A. _Ha- 12a; 47a-48a).

One such agreement: was entered ‘into Qn March 12,

1954, and expired on September 30, 1956. With respect

to hiring procedures, the agreement provided for a.

- *

ER | GER gg RR eNO NS

Ce et me

5)

e

daily **shape-up’* and contained the following | union

- see urity clause (BA: 12a; Q6a):

Union Sevres: As to any and all work covered

hereunder, finally determined by duly constituted

public authority not to beSsubject to any statute:

forbidding a preferential hiring provi-ion, the em-

ployers agree to give.a preference te lo) gsnoremen

who are members of the Union in good standing. -

As to all other work the employers agree to insti-

tuté and maintain a Union Shop as shall comply

With Section 8(a)(: 3) of the N ‘ational Labor Rela-

. tions "Act or any ame idment thereto:

A second cles bargaining agreement, containing

substantially identical provisions respecting the shape-

up and. union security, was entered into oi March 1s,

1957, but was made retroactive to October ‘1, 1956 and -

. extended for a period of three years from that date

(B.A. Ma; 98a-94a). At the time the Union entered

into the March 1954 contract it had satistied the re-

quirement in Section 8(a) (3) of the Act which made

compliance with the filing provisions of Section 9(f),.

(g) and (b) prerequisite to the execution of a lawful

union security _agreement (B.A. 6a, 39a)” The

Union's compliance status lapsed, however, on Decern-

ber 31, 1993, and was not fully renewed: until August

2, 1957, nearly six months after the execution of the.

‘second agreement in Mareh 1957-CBuA. 17a: 40u-43a,.

: - 2 : F .- .

90a ).

“

2 Section 9(f), (g) and th) provided for the tiling of data respect-

ing union finances and erganizational ‘structure, and of non-com-

munist affidavits by -union officers. These provisions have been

repealed by,the 1959 amendments to the Act. 73 Stat. 519, 525.

> icc,

*

-

6 .

Hiring at Maritime is effected through the, shape-up ¥

(B.A. 18a; 56a-d7a). Pursuant to this system men .

_ seeking employment gather at Maritime's place of busi-

ness at about 7:30 aim. each work day where, upon

signal, they present themselves (‘‘shape-up"’) for selec-

tion by Maritime’s hiring foremen to fill the available

jobs (B.A. 18a; 54a-55a). The hiring’ foremen are

members of the Union and follow the uniform ‘practice

of employing union members in preference to other

“applicants (B.A. 18a, 21a; 49a, 55a, 59a, T0a-71a, 74a).

Thus applicants are classified in the shape-up as (1)

hook men (sometimes also called button men) ; (2) card

men; (3) those who have neither books nor cards (B.A.

19a-20a; 55a-56a). These terms refer to the union

status of the applicant. Book men are full fledged

members of the Union (B.A. 19a; 56a). They are is-’

sued a new and differently colored button each month

upon payment to the Union of the month’s dues (B.A.

19a; 49a-50a ). The buttons are worn by the members

in prominent display,-and are used to identify the

weareras a member of the Union in good standing

(B.A, 19a-20a ; 49a-50a, 98a, Tla) and thereby qualify-

ing him for preference in hiring as required by the

consiitttion of the International. Longshoremen’s As-

sociation (B: A. 20a; 92a).

Card men are not union members, but. are approved

by the Union for work for a monthly period. upon pay-

ment of a: fee-equivalent to a month's dues (B.A. 19a;

49a, 56a). “However, an individual who acquires cards

for 12 consecutive: months,and who has 700 hours of

waterfront work experience is eligible for full mem-

bership in, the Union (B.A. 19a; 49a). ;

7

©

At each morning shape-up the hiring foremen make

the first job assignments to book men (B.A. 21a; 59a,

“4a). If there are remaining jobs after the supply of

hook men: haye been exhausted, assignments are then

made among the-card men (B.A, 2la; 59a, 72a, 74a).

Ik inally, if any work remains, the foremen make their

selections from-applicants who have neither a. union

hook nor a permit card (ibid.). The only: occasions

upon which non-members are hired in preference to

union members are instances where: the member is he-

ing disciplined for a. violation of a union or contract.

rule,,or where a special work assignment has been_re-

served for the member (B.A. 22a ; DTa-D9a ),

Marvin Gould and Zack Page were not members of

the Union, but had worked at Maritime as card men

since 1955 and 1952, respectively (B.A. 20a-21a, 28a-

29a; d9a-Wa, T2a-Tda, T7aj. Following a November

1956 strike in the Philadelphia waterfront, the Union

initially refused to issue cards to Gould and Pave he-

eause they had not performed picket duty, but with-

drew the refusal several days later when the unfair

labor practice charges were filed in this case (B.A, 20a-

2la; 67a-63a). Giotild and Page, however, neither re-

quested nor obtained cards after.the initial refusal, but

they continued to shape-up each morning at Maritime

(B.A..21a, 29a+30a ; 67a-69a, Ta, qa). In this role

they were accorded the lowest priority ‘under the hiring

system, regardless of their employment experience, and

accordingly obtained employment only whenever the

supply of book men and card men did not exhaust the

available work assignments (B.A. 308; 69a-7Ua).

8

‘B. The —— s Conclusions and cn

The Board concluded that the Union, by entering into

and taking part in the hiring practices at Maritime

through foremen subject to union discipline, caused

discrimination in favor of union members, and thereby .

jolated Section 8(b)(2) and (1)(A) of the Act: By

# part in subjecting employees Gould and Page tothis ~

discriminatory practice, the Union was similarly found

’ to have violated these statutory provisions. The Board

also concluded that the union security provisions in the

1954 and 1957 contracts were invalid, and that ‘the

Union had further ‘violated Section 8(b (2) and -(1).

-(A) of the Act by maintaining them in effect. The in-

validity of the union security clauses was premised on

alternative grounds: first, that the language which

purported to defer the clause granting preference t

union members could not be given effect, Decause the

hiring practice showed that ‘the, parties never Ye: sliy

intended to postpone operation of the preference sys-

tem’’ (B.A. da); and second, that the deferral language

was ‘so obscure that a workingman covered by its pro-.

visions could hardly be expected to know when union

membership was required and when it was not’ ( id.,

n. 3). In addition, the union security clause in the

1957 contract was found to be independently unlawful,

in view of the fact that the Union had not complied with

the filing re quirements of the Act ‘at: the time such

agreement was exectited (B.A. 8a-4a, 18a, Ba, 292-302)...

/ To remedy the foregoing violations the Board's order

requires the Union to cease, and desist.frem entering

into or maintaining any agreement or practice: with

Maritime or any other employer member of- Philadel-

9 s

phia Marine Trade Association, under which union

nmiembers are given preference, in employment, except

to the extent authorized by S section 8(a) (3) of the Act:

from causing Maritime fo diseriminate unlawfully |

the employment of Marvin Gould and Zac k Page, or

-any other applicant; and from in any other.manner re-

straining or coercing Maritime’s employees in the exer-

cise of the rights guaranteed in See tion 7 of thie Act.

—Aftirmatively, the Board's order requires the Union to

reimburse Maritime’s employees for all-fees, dues and

» other monies collected pursuant to the wnlawlul eou-

tracts and diseriminatory hiring practices, to make

whole Gould and Page for any Rane ial wages Incurred as:

a result-of the discriminationagainst them, and to post

appropriate hotices. (BJA. da-Ta.) . :

C2. The Decision of the Court of Appeals,

Phe Court of Appeals sustained the Boagd’s unfair

labor practice findings, and granted enforcement of its

order, except that portion requiring re ‘imbursement of

monies paid to the Union. Enforcement of the latter

portion was denied upon the authority and rewsoning

of the court's cartier decisions in Nationa Labor Rela-

tions Board v, American Dredging Company, 276 BF. 2d

286, petition for certiorari pending, No, 125, this ‘Perm,

and National Labor Relations Board vy. United States

Steel Corporation (American Bridge Divisions and

Lacatl Tnion 542, International Union of Operating

‘Engineers, AFL-CIO, not vet reported, petition for

* The court, in-its deeree.‘also modified the breadth of the cease

and desist provisions (Appendix, fra, pp.-21-226. That modifies-

tion ix not contested here. ;

~s

10

certiorari pending, No. 228, this.Term. (Appendix,

infra, p. 19-20,). :

‘ . REASONS FOR GRANTING THE WRIT ‘

This case presents the question of whether the Board,

as a remedy for hiring practices which unlawfully en-

courage union membership, may require that monies

paid by the ‘employ ees to the union w wa subjected to

thoge practices be repaid to them, The Same question

is presented in Local 60, E'nited Frotherhood of Car-

penters Vv. National Labor Relations Board and Na-

tional Labor Relations Board vy. Loeal 357, Interna-

tional. Brothe rhood of Teamsters, Nos, 68 and 85, this

Term, certiorari- granted, June 27, 1960. In addition,

Board petitions are pending in other « "aSeS involving,

the question, including American Dredging Company,

and United States Steel Corporation (American Bridge

Division’), relied upon by the court beiow—-Nos, 89, 120,

© 123, 228, 229, this Term. The instant petition is filed

to preserve the Board's position on the issue in this:

o

case.

CONCLUSION:

-For the foregoing reasons, the present petition should

be granted, or, in the alternative, held in abeyance pend-

, Se eG, , lie Tre oS ale

ing a decision on the question in Nos. 68 and 89, :

Respectfully submitted,

Si Ant RoTHMAN,

©

General ( ‘ounsel,

of Domi kK L. Manout, |

ae 3 Associate General ( ‘ouesel,

: ‘ Not TON J. COME, i

. Assistant General Counsel,

®» Sranpat EK. WEINBRECHT,

oh : aes | Attorney,

‘National Labor Relations Baard,

] authorize the filing of this petition fora writ of

éRtiorari. |

eras | Sonne od, Lee RANKIN,

Solicitor General,

Avausr 1960, #

ad Sia i : <i

pene

12 | |

ode ae a APPENDIX oe.

Unirep States Court oF APPEALS FOR THE THIRD .

CIRCUIT

| No, 12,903 °

NationaL Lapor RELATIONS Boarb, PETITIONER,

vv.

Locatel566, INTERNATIONAL LONGSHOREMEN’S

; ASSOCIATION, RESPONDENT.

ON ‘PETITION FOR ENFORCEMENT OF AN ORDER.LOF THE

NATIONAL Lapor RELATIONS Boar

Argued November 16, 1959

Before Braces, Chief Judge and Gooprich and ,

MeLAvuGHuin, Circuit Judges. 7

OPINION OF THE COURT

(Filed May 4, 1960+) -

By MeL AUGHIIN, Cirenit Judge.

The National Labor Relations Board ( Board }. seeks -

enforcement of its oriler, pursuam to Section 10(e) of

the National Labor Relations Act (Act, 29 U.S.C, See-

tion 151 et’xeq., against the respondent, Local 1566, dn-

*

ternational Longshoremen’s Association (Union). The

- Marvin-Gould and Zack Page, because of nop-member--

ship inthe Union; by participating i in a discriminatory.

Board fotind that the Union violated Section 8(b)(®)

and (1)(A) of the Act by causing an employer, Mari-:

time Ship Cleaning and Maintenance Co, (Maritime)

to discriminate against two applicants for employment,

hiring practice against n6n-member applieants; and by °

maintaining iii effect, in the collective bargaining agree-

en i | i2

ments of 1954 and 1957, unlawful union security clauses, -

The Trial Examiner held that the 1957 agreement only :

was unlawful for failure te comply with the filing re-

quirements-of Séction 9(f), (g) and (h) ofeahe Act, but

the General Counsel contended and the Board found

that both contraets were unlawful apart from any. con-

siderations of filing.

~ The- Board ordered the Union to cease and desist

from entering into or enforcing any agreement orsprac-

tice of preferential hiring except as authorized by See-

tion 8(a) (3) of the Act: from causing, or attempting to:

cause Maritime to refuse employment ’ to ‘Gould and

Page, or any. other applicant, for nen-membership: in

the Union in violation of Section 8(a)(3): arid from

restrainjng or coercing in any othermariner employees

or applicanty for employment in the exereise of their’

rights under Section 7 of the Act, except to.the extent

authorized hy. Section 8(a) (3). The Board alse ordered |

. the following affirmative ac tion: To make whole Gould

and Page for any loss of pay resulting from the dis-

crimination and to refund to the employees of Maritime

the thitiation-fees, dues and all-other nfomes unlawfully

exacted from them as a price fo: their employment, for

the period heginning six months prier te the fillug and:

service of the charges (commonly: referred, tooas the.

63 Browt Olds Rule*’).

Hirwng at Maritime ix effected by means of the

“shape-np”’ system. Mer desiring employment, report

each day~at Maritime’s place of ‘business where hiring

foremen, employees of Maritime and themselves amnion

members, select from the group for whatevr work ix

available on that day.. The Trial Examiner dytermined,

and the evidence so establishes, that priority for-em-

ployment was giverraccording to union status. The ap-

plicants fell into three vatecories: (1) Book-men, whe

were fyll fledged members ‘of the union and who, upon

—

>

ue

payment of dues, received an identification button, dif:

_ferently colored for each month. (2) Card-men, not

members of the Union but who, upen payment of

**dues’’ each nignth, were given a-card. With twelve

consecutive cards and compiling 700 work-hours on the -

waterfront, a card-man becomes eligible for ful! union

membtrship. (3) Those applicants who had neither |

books nor cards. Priority -was allocated according to

these categories, book-men receiving preference and_

upon exhausting these; card-men and ete if.any jobs

remained, the last class. , oa

Gould and Page were card-men, bit in December

1956 the Union, through its Secret tary-Treasurer, re-

fused to issue their cards ‘along, with sdme 7 to 10 other .

men) because they had not picketed during a strike

which‘oceurred about mid-Nov ember 1956.2 Subsequent -

to their bringing charges‘the parties were informed that

- the Union had reseinded its refusal to issue the cards,

However, neither. again sought them.

The Union resists enforcement of the Board's: orde or’

on the grounds that any discriminatory hiring practices

at Maritime were the unilateral action of Maritime’s

hiring foremen and there was insufficient evidence to

support a finding that the Union participated therein;

and the union security clause in the colleetive bargain-

ing agreements‘was not unlawful since it was couched in

terms of a ‘‘savings”’ or ‘deferral’ clause. The Union

also contests:the Board's application of the ** Brown--

Olds Rule’ in its remedy.

The Union does not question, and we shall not con-

sider, the finding that it was unauthorized to: make a:

union security contract in 1957 for failure to comply

- with Section 9(f), (2) and (h) of the Act, nor the denial

of its motion, at the hearing, for prodnetion of names

and pre-hearing statements of witnesses. Ph

Thigz,court, has reviewed? the whole tecord and con-'

‘ toe .

3,

:

c

cludes there is substantial evidence to support the

Board’s findings. Such findings therefore are con-

elusive and will not de disturbed. Universal Camera’

Corp. v. Labor Board, 340 US, 474 (1951).

|

. ee . a? sg

Union Participation

The hiring svstem was based upon the union status of

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

cards or neither—and it was the Union who determined

that status and either issued, oF refused to issue, a but-

ton or a card. When some nine to twelve card nien,

including the, complainants Page and Goulds did not:

walk -a picket line the Union reftited to issue them

cards, This action might have been meaningless as a

disciplinary measure if the Union had not heen com-

pletely aware that without a card, auployment oppor-

tunity was greatly reduced under Maritime’s hiring

practiced) The constitution of the International pro-

vides thaf only the regular PLA button ‘shall be ree-

ognized in the ‘hiring of men for. work” and provides

a penalty for violations, The constitution was sup-

* plem nted on the lecal level by the collective bargain-

ing agreements raljing for hiring preference for Union

members.’

The sum of this is a elear indic. ation of a -Enion pol-

icy or practice of preferential hiring. The Trial Rx-

aminer held: |

“* "© that where the circumstances disclose the

establishment ‘or imposition ‘of a discriminatory

hiring polity by or for a local union, that union

may be held responsible where discrimination. is

a proximate and foreseeable consequence of the’

operation of the-policy, and discrimination in fact

' The “deferral” clause of these agreements is discussed infra.

16°

results. This is not to impose upon the local re-

sponsibility for programs or conduct-over which it

~ has no control. It is merely to hold it accountable

“for its own action. If the loeal wishes to avoid

liability in such situations there are effective meth-

ods by which it may disavow the offending policy.”

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

dence with testimony that the hiring foremen were not |

aware of the:clause in the Internatfonal constitution.

The Examiner did not credit this testimony since only

one.of the five foremen would .so testify. Testimony

that the local was orally advised B¥ the Lnternational

>that the hiring’ clause_in-the constitution was nof en-.

forced and that locals, in any event, have blanket an-

thority to ignore any’ provision in the constitution

which they deem illegal was considered }*incredible”’

‘by the Examiner in the teeth of evidence that other pro-

visions are followed and enforced, particularly a‘spe-

cific method for dealing with the problem of illegal pro-

visions, And the constitution itself declares uni) and

void any local by-law in conflict with the constitution.

The question of credibility of: testimony is within the

Trial Examiner's domain. ‘** * * it is not our task

to resolve questions of credibility of those who testify

at the Board hearings.”* National Laber Relations

Board v. Local 420, eti., 239 F.2d 827, 528.09 Cir. 1956),

The Union attempts to meet the Examiner's finding

by averring that union participation in unfair prae-

tices must be proved by chrect evidence. We are of

the opinion that this is erroneous. It is true that many

of the cases cited by the Board in support of its position

contain indisputable evidence thatthe offending union...

formally requested or demanded that the company fol-

low a discriminatory hiring practice. -Nee e.g. National

Lhahor Relations Board v. Local 369, ete., 240 F.2a 539 -

(3 Cir. 1956) ; National Labor Relations Board v. Local

: 17

420, ete., 239. F.2d 327 (: 3 Cir. 1956). But these deci- —

sions do not establish a minimum standard for finding

_ union. participation. In fact in National Labor Rela-

tions:Board ¥. Local 369, supra, at 544, this court stated :

“The absence of proof that the Union spec ifically re-

quested the Company to discriminate is not critical

wheré there is substantial evidence to support the find-

-ing of a dis-riminatory hiring arrangement actively

‘participated’in by the Union.” The Board may, as it

did here, dvaw a reasonable inference from the believ-

able evidence. It must, of course, be supported by sub-

stantial evidence but an-inference as such is not pro-

“seribed by the Act. This has been settled by Radio Offi-

cers vy. Labor Board, 347 U.S. 17, 48-52 (1954). There,

Union participation was proved but the unfair practice,

encouragement of union membership, was inferred by

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

page 92:

Since encouragement of union membership is ob-

viously a natural and foreseeable consequence of

any employer discrimination at the request of a

. Union, those employers must be presumed to have.

intended such encouragement. It follows that. it

was eminently reasonable for the Board to infer

encouragement of union membership * * *."", .

Conversely, the unfair practice being proved, the Board

may make a reasonable inference from all the evidenie

that the Union participated in such practice. **The

unfair labor -practice can be found from a procedure

which shows a practice or understanding though it may’

not establish an express contract between the parties.”

National Labor Relatiotis Board v. Loe al 420, supra at

:

— The Union’s contention that direct evidence, rather

than inference, is necessary to implic ate jt in the unfair

18

pfactices is set\yt rest by the following language in Ra-

dio Officers, supraat 50:

“There is vothing in the language of the amend-

ment [Taft-Hartley] itself that suggests denial to

the Board of power to draw reasonable inferences.

It is inconceivable that the authors of the reports

[ House Reports on Taft-Hartley] intended such a

result; for a fact-finding body must have’ some

power to decide which inferences to draw and

which to reject. We therefore conclude that in-

sofar as the power to draw reasonable inferences

ix concerned, Taft-Hartley did not alter prior law.”’

‘

The testimony in this instane ¢ is sufficient to support

the resulting inference of the Board. Whether this

court would have arrived at: the same result is of no

“matter. Our review is.limited to the sufficiency of the.

supporting evidence, Universal Camera Corp, v. Labor

Board, 340 U.S. supra, 488. :

s . II °

Union Security Cliuse.

We turn now to the legality of the union security

clause contained in’ the collective bargaining agree-

ments between the Union and Maritime. It reads:

*Unton Security: As to any and all work covered

hereunder, finally determined by duly constituted

public authority, not to be subject to any statute

forbidding a preferential hiring provision, the em-

ployers agree to give preference to men who are

“members of the Unjon in good standing. As to all

', other work, the employers agree to institute and

maintain a unien shop as shall comply with Sec-

tion 8(a)(3) of the National Labor Relations *Act

or any amendment, thereto.”’

Ae eee

The Board found that- this ae in both the 1954

and 1957 ag ‘coments, was illegal despite the deferral

language therein, This decision was based on the tind-

ing that, since the parties immediately, began dmple-

menting the preferential portion without regard to the

deferral language, the clause was executed with the

present intent to create dise ‘riminatory conditions of

employment. ee aye ta

The Union counters, that a collective bargaining

agreement valid on its fuce cannot be converted inte an

ilhegal hiring clause because of subseqacit diserimina-

tory practices. This argument can be dismissed as not:

meeting the issue, The Board found: that the Agree-

ment was not valid in faet, from its ery meception, it

‘cannot be seriously argued that the mere recitation of”

words in a proper aud accepted form can throw a blan-

“ket absolution over illegal acts presently performed

~ under a clause, included in a contract, purportedly to:

cover a future possibility. of legal sanction,

Finding as.we do, it is unnec essary to discuss the -

ssue whether the clause meets. the requirement, of

‘clear and unequivocal’ set forth in Lewis v. Quality »

Coal Corp., 270 F.2d 140 (7 Cir, 1959). However in

‘passing, it should be pointed out that the elanse in.

volved, in both meaning and clarity, is a far ery from

the one discussed in the Lewis opinion.

IIT:

Th e Remedy

¢

The sole remaining problem is the Board's. appliea-

tion of the * Brown-Olds Rule.” Ina recent decis jon,

National Labor Relations Board v. American Dredging

Company, —° F.2d (3 Cir, 1960), this court de-

clined to enforce the rule against an émplover who

“neither dominated the union nor collected the-fees and

dues, Further, there was no evidence in the record iit-

’

©

20

-dicating that employees were required to join the union.

as a condition to obtaining employment. ‘Requiring the

"employer in that situation to reimburse fees and dues

paid to their union would be a windfall for the em-

plovees, and in no, way effectuate the purposes of the

Act. And in National Labor Relations Board v. United

States Steel Corporation (American Bridge Division)

and Loeal Union 542, AFL-CIO, FP2d 7) (3 Cir.

1960), we have continued to insist that the reimburse-

ment order must be limited to employees shown to have

been coerced.) And we emphasize that in such alleged

_ Instances it is necessary to produce evidence of coercion

as to each individual concerning whom it is asserted.

Since the record before us furnishes no proof of that

type weare forced to refuse the part of the Board's

order allowing: reimbursement to employees for fees

and dues they had paid. Regarding Marvin Gould and

Zack Page, they are to 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 (¢) of the Order

will be amended by striking out its last paragraph. A

decree in accordance with this opinion may be submit-

ted. |

. 2)

UNitep STaAtes Court of Arrrals ror THE THIRD

CiRCUIT

No, 12,908

NarioNaL Lapok RELATIONS Boakb, PETITIONER, -

. - ’

igs

Locan 1566, INTERNATIONAL LONGSHOREMEN'S

| ASSOCIATION, RESPONDENT.

DrcreEE ENrORCING IN Parr AND DENYING IN PART AN

Oxper or THE Nationat Lanor RELATIONS Boarp

Before: ‘Biacs, Chief Judge and Gooprich san Mee

LAUGHLIN, Circuit Judges:

THis CAUseé caine oll lo hie heard upon the petition of

the National Labor Relations Board to enforce its order

dated January 16,1959, The Court heard argument of

respective counsel on November 16, 1959, and has con-

sidered the briefs and transcript of record filed in this

ease, On May 4, 1960, the Court being fully advised

in the premises, handed down its opinion enforcing in

part-and setting aside in part.the Board’s said Order.

In conformity therewith. it is hérehy

Orperep. Abrtpari AND DPrerkep by the United

.States Court of Appeals for the Third Circuit that Re-

spondent, Local 1566, International Longshoremen's

Association, its officers, representatives, agents, sueces-

sors and assigns shall: |

1. Cease and Desist from:

(a): Giving effect te, entering into, renewing, amain-

taining, or enforcing any agreement, arrangement, un-

deystanding or practice with Philadelphia Marine .

Trade Association, Maritime Ship Cleaning and Main-

tenance Co. or any othégamember emplover of Phila-

2

delphia Marine Trade Association, requiring employees

or applicants for employment to be or become members -

of, or to obtain clearance or approval from, the Re-

spondent Union as a condition of, employment except

as authorized by Section 8 (a) (3) of the National La- -

bor Relations Act, (hereinafter called the Act.) eet

(b) Causing or attempting to cause Maritime Ship

Cleaning and Maintenance Co. to refuse employment to

Marvin Gould and Zack Page because they are not

members-of, or have not secured clearance or approval

from, the Respondent Union in violation of Section |

8 (a) (3) of the Act.

2. Take the following affirmative action which the ’

Board has found will effectuate the policies of the Act.

(a) Make whole Marvin Gould and Zack Page for

any loss of. pay incurred as a result of the diserimina-

tien against themr in the manner set forth in the section

of the Trial Examiner’s Intermediate Report dated

January 16, 1958 etititled **The remedy.”

(b)- Post at its offices in Philadelphia, Pennsylvania,

and alleother places where notices to members are cus-

tomarily posted, copies of the notice attached hereto

and m@@med ** Appendix."’ Copies of said notice to be

furnished by the Regional Director for the Fourth

Region ( Philadelphia, Pennsylvania) shall, after being

‘duly signed by representatives of the Respondent, be

posted immediately upon r ceipt thereof. and main-

‘ tained for sixty (60) consecutive days thereafter in

conspicuous places, including all places where notices

to members are customarily posted. Reasonable steps

shall be taken by the Respondent to insure that said

notices are not altered, defaced, o®covered by any other

material. | ;

(«) Mail to the aforesaid Regional Director signed

copies of the notice marked ** Appendix”’ for posting by

we ao

93 pee ‘ : >

Maritime Ship Cleaning and Maintenance Co., the em-

ployer willing, in places where notices to emplovees.and

prospective employees are customarily posted.

(d) Notify the said Regional Diréctor in writing,

within ten (#0) days from the date of this Decree what

steps the Respondent has taken to comply therewith.

%

° . . * By THE Court,

| . (S) MeLavounix, © * eg

7 Crrenit Judge.

Daten: June 14, 1960. i aaa

~ &

24

NOTICE

To ALL MEMBERS OF LocaL 1566, INTERNATIONAL LONG-

SHOREMEN’S ASSOCIATION, AND FEMPLOYEES AND AP

, enment FOR EMPLOYMENT OF MARITIME SHIP CLEAN-

ING AND*MAINTEN ANCE CO,

Pu RSU ANT To

_ A DECREE of the U nited States Court of Appeals for the”

Third Circuit, enforcing in part and denying in part,

an order of the National Labor Relations’ Board, and

in order to effectuate the policies of the National Labor

Relations Act, we hereby notify you that:

We Witt Nor give effect to, enter into, renew,

maintain, or enforce any agreement, arrangement,

understanding, or practice with PHILADELPHIA

MARINE TRADE AssOcIaATION, MARITIME SHIP CLEAN-

ING AND MAINTENANCE Co,, or any other member

employer of Philadelphia Marine Trade Associa-

tion, requiring employees or applicants for employ-

ment to, heeome members or ta obtain clearance or

approval asa condition of emfPloyment, except to

the extent that the requirement of clearance or ap-

proval by a labor organization is lawfully imposed

under the conditions stated ins Moantain -Pacifie

Chapter of the Associated General Contractors.

119 NLRB No, 126. . r

We WILL Nort cause or attempt té cause MARITIVE

‘SuHip CLEANING AND MAINTENANCE Co., its officers,

agents, successors, or assigns, to discriminate

against employees or applicants. for employment

heeause they are not pmembers of or have not

received clearance from our organization, in viola-

tion of Section 8 (a) (3), | .

» % 25

WeE WILL make Marvin Gould ‘and Zack Page

whole for any loss of pay they aay have suffered

as result of discrimination against them. :

Local 1566, INTERNATIONAL LONGSHORE-

‘s MEN'S ASSUCIATION,

(Labor Organization ;

Dated -, " By ——,

(Repres ntative ) (Title ’

This notice must remain posted for 60 days from the ~

date hereof, and must not be altered, defac ‘ed, or covered

‘by any other material.

a

%

.

R U S&S GOVERNMENT PRINTING OFFICE 18860 Steeio *s

. .