PUERTO RICO STEAMSHIP ASSOCIATION v. NLRB, 15474.
| Decision Date | 23 June 1960 |
| Docket Number | No. 15474.,15474. |
| Citation | 281 F.2d 615 |
| Parties | PUERTO RICO STEAMSHIP ASSOCIATION and its member companies, Bull Insular Line, Inc., et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Union de Empleados de Muelles de Puerto Rico, Local 1901, IBL-AFL-CIO, Union de Empleados de Muelles de Ponce, Sub-Local 1901, IBL-AFL-CIO, and Union de Empleados de Muelles de Mayaguez, Sub-Local 1901, IBL-AFL-CIO, Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. A. V. Cherbonnier, New York City, for petitioners. Mr. Carl K. Goodson, Washington, D. C., also entered an appearance for petitioners.
Mr. Earle W. Putnam, Atty., National Labor Relations Board, of the bar of the Supreme Court of Virginia, pro hac vice, by special leave of court, with whom Messrs. Dominick L. Manoli, Associate Gen. Counsel, National Labor Relations Board, Marcel Mallet-Prevost, Asst. Gen. Counsel, National Labor Relations Board, and Frederick U. Reel, Atty., National Labor Relations Board, were on the brief, for respondent. Mr. Thomas J. McDermott, Associate Gen. Counsel, National Labor Relations Board, at the time the record was filed, also entered an appearance for respondent.
Mr. Milton Horowitz, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special order of court, for intervenors. Mr. Seymour W. Miller, New York City, was on the brief for intervenors.
Before BAZELON, BASTIAN and BURGER, Circuit Judges.
Petitioners herein, Puerto Rico Steamship Association Association and its member companies, petition to review and set aside an order of the National Labor Relations Board Board issued December 3, 1959. The Board, in its answer, has requested enforcement of the order.
In the order appealed from, the Board held that petitioners had violated § 8(a) (1), (2) and (3) of the National Labor Relations Act, as amended, 29 U.S.C.A. §§ 151-168, in executing and maintaining contracts with the intervenors containing preferential hiring clauses. The facts are not materially in dispute.
It appears that the Association bargains collectively with the labor organizations representing the employees of its member companies. On September 30, 1956, the Association entered into a collective bargaining contract with the unions covering the cargo and freight checkers of the member companies on their docks in certain ports in Puerto Rico. This contract contained the standard union security and dues checkoff provisions, which required all employees to join the union intervenors thirty days after the employment date and permitted petitioners to deduct and transfer dues payable to the union under prior written authorization from their employees. However, the union shop agreement included the following additional clause:
Article II Subsection E, "the companies will give preference in employment to members of the Union, but will reserve the right to selection without discrimination for reasons of membership or nonmembership in the Union."
On October 3, 1958, a renewal contract for a three-year term expiring September 30, 1961, was executed, with the same provision in a slightly revised form. This revision reads as follows:
Article II Subsection D, "the companies will give preference in employment to members of the Union when available and qualified, but will reserve the right of selection without discrimination for reasons of membership or nonmembership in the Union."
On December 5, 1958, after the issuance of the complaint herein, the parties amended the contract to eliminate the revised clause from the renewal contract. It is contended that the record does not show that the employees were ever notified of this deletion, but the Association did provide its members with copies of the renewal contract, which were made available to new employees as required by the terms of that agreement. It is conceded that the record contains no evidence from which it could be established whether petitioners, in adherence to this clause, ever gave or refrained from giving union members any preference in employment.
On the foregoing facts, the Board found that the Association had violated the section of the Act referred to, rejecting petitioners' contention that, as the unlawful hiring clause had never been applied or enforced, its mere inclusion was not an unfair labor practice. The Board determined that petitioners' violation of § 8(a) (3) ceased on December 5, 1958, upon the deletion of the illegal provision, but held that the failure of petitioners to notify their employees of this action resulted in continuing violation of § 8(a) (1) and (2) of the Act.
The Board's order required petitioners to cease and desist (1) from the unfair labor practice found; (2) from recognizing and enforcing any contract with the union until the union demonstrated its majority in a Board-conducted election; and (3) from in any manner infringing on the rights guaranteed the employees under § 7 of the Act. The Board's order also required petitioners to reimburse all present and former employees for any initiation fees, dues, or other sums collected from them after May 6, 1958, under the 1956 and 1958 contracts, and to post the customary notice.
On this appeal, petitioners contend that the case presents at most a technical violation of ...
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