National Labor Relations Board v. International Hod Carriers, Building and Common Laborers Union of America,local No. 1082 and Its Agent, George Tarr

384 F.2d 55 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS UNION OF AMERICA,LOCAL NO. 1082 and its agent, George Tarr, Respondents. No. 20775. United States Court of Appeals Ninth Circuit. Sept. 29, 1967, Certiorari Denied Jan. 29, 1968. See 88 S.Ct. 853 . Marcel Mallet-Prevost, Asst. Gen. Counsel, Solomon I. Hirsh, Atty., N.L.R.B., Washington, D.C., Ralph E. Kennedy, Director, N.L.R.B., Los Angeles, Cal., for petitioner. Lionel Richman, Richman, Garrett & Ansell, Jones & Jones, Los Angeles, Cal., for respondents. Before CHAMBERS, BROWNING, and ELY, Circuit Judges. PER CURIAM: 1 The Board held that the respondent union violated its duty to 'confer in good faith with respect to wages, hours, and other conditions of employment * * *' imposed by section 8(b)(3) and 8(d) of the National Labor Relations Act, 29 U.S.C. 158(b)(3) and (d) when it refused to enter into a collective bargaining agreement unless that agreement contained a provision requiring the employer to post a performance bond. 2 The respondent first contends that the evidence does not support the Board's finding that the respondent insisted upon the posting…

(dissenting):

I respectfully dissent. I expressed my views in a proposed opinion in which my Brothers, after very careful and conscientious consideration, refused to concur. It reads as follows:

The National Labor Relations Board petitions for enforcement of an order which directs the respondent union to cease and desist from engaging in conduct found to constitute an unfair labor practice and to take certain affirmative action. Our jurisdiction is supplied by section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160 (e). The decision of the Board is reported at 150 N.L.R.B. 158 (1964).

For two years prior to May 31, 1962, E. L. Boggs, a plastering contractor, had been party to an agreement with one of the respondent’s sister locals. When that agreement expired, Boggs joined the Progressive Plastering & Lathing Contractors’ Association, an organization which was formed to provide collective bargaining representation for its members. In June, 1962, a representative of the respondent union appeared at Boggs’ job-site and delivered a copy of a proposed contract to Boggs’ foreman. The foreman delivered the contract to Boggs, in compliance with the union representative’s…

The Board held that the respondent union violated its duty to “confer in good faith with respect to wages, hours, and other conditions of employment * * *” imposed by section 8(b) (3) and 8(d) of the National Labor Relations Act, 29 U.S.C. § 158 (b) (3) and (d) when it refused to enter into a collective bargaining agreement unless that agreement contained a provision requiring the employer to post a performance bond.

The respondent first contends that the evidence does not support the Board’s finding that the respondent insisted upon the posting of a performance bond. We think that the record considered as a whole contains substantial evidence to support the Board’s finding. See Universal Camera Corp. v. NLRB, 340 U.S. 474 , 71 S.Ct. 456 , 95 L.Ed. 456 (1951).

The respondent next contends that the Board erred in concluding that bargaining for the performance bond clause did not constitute bargaining “with respect to wages, hours, and other terms and conditions of employment” within the meaning of section 8(d). See NLRB v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 349 , 78 S.Ct. 718 , 2 L.Ed.2d 823 (1958).

The Board has uniformly held that bargaining for a performance…