National Labor Relations Board v. International Union of Operating Engineers, Local No. 12, AFL

237 F.2d 670 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 12, AFL, Respondent. No. 15003. United States Court of Appeals Ninth Circuit. October 9, 1956. Rehearing Denied December 4, 1956. Theophil C. Kammholz, Gen. Counsel, David P. Findling, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Arnold Ordman, Frederick U. Reel, Atty., NLRB, Washington, D. C., for petitioner. David Sokol, Los Angeles, Cal., for respondent. Before STEPHENS, ORR, and HASTIE, Circuit Judges. ORR, Circuit Judge. 1 The National Labor Relations Board, hereafter the Board, petitions this court to enforce its order against the International Union of Operating Engineers, Local No. 12, AFL, hereafter Local 12. 2 Local 12, together with other construction trade unions, has a collective bargaining agreement with Associated General Contractors, hereafter AGC. The legality of the agreement as such is not challenged in this cause. 3 The agreement provided that the union would establish and maintain an open and nondiscriminatory employment list in the work area jurisdiction of each respective local union of each particular trade. AGC members…

The National Labor Relations Board, hereafter the Board, petitions this court to enforce its order against the International Union of Operating Engineers, Local No. 12, AFL, hereafter Local 12.

Local 12, together with other construction trade unions, has a collective bargaining agreement with Associated General Contractors, hereafter AGC. The legality of the agreement as such is not challenged in this cause.

The agreement provided that the union would establish and maintain an open and nondiscriminatory employment list in the work area jurisdiction of each respective local union of each particular trade. AGC members would first call the union when they needed men in certain work classifications. The agreement set up a priority system for job referrals, with the highest priority for jobs going to workmen who had recently been laid off by AGC members who desired to reemploy the same workmen in the same area. Second choice went to workmen who had been employed by AGC members in the union’s area jurisdiction during the previous ten years. The last group on the priority list were workmen whose names were entered on the lists in the area.

The agreement between the union and AGC also…

(dissenting in part).

This court is enforcing against the defendant labor union so much of an order of the National Labor Relations Board as gives effect to the board’s conclusion “that by removing Holderby’s name from the ‘Member’s’ list because of his expulsion from the Union, thereby denying him equal access to jobs, the Respondent * * * violated Section 8 (b) (2) and (1) (A) of the Act.” While this language places formal reliance upon two clauses of Section 8(b), namely clauses (2) and (1) (A), 1 the opinions of the board and this court make it clear that both tribunals have analyzed the Holderby matter as essentially a violation of clause (2) without reference to the different considerations upon which an invocation of clause (1) (A) must depend.

To make my view of the matter clear, I shall consider those clauses separately. Cf. National Labor Relations Board v. Philadelphia Iron Works, 3 Cir., 1954, 211 F.2d 937, 943-944 .

I think the union’s action with reference to Holderby did not constitute a violation of clause (2) of Section 8(b). The issue under that clause is whether the union caused or attempted to cause any employer to discriminate against Holderby in violation…