LOS ANGELES MAILERS UNION NO. 9, INTER. TYPO. U. v. NLRB

• Decision Date: 25 October 1962
• Docket Number: No. 16887.,16887.
• Citation: 114 US App. DC 72,311 F.2d 121
• Parties: LOS ANGELES MAILERS UNION NO. 9, INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

114 US App. DC 72, 311 F.2d 121 (1962)

LOS ANGELES MAILERS UNION NO. 9, INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 16887.

United States Court of Appeals District of Columbia Circuit.

Argued September 27, 1962.

Decided October 25, 1962.

Rehearing Denied December 6, 1962.

Mr. George Kaufmann, Washington, D. C., with whom Messrs. Gerhard P. Van Arkel, Washington, D. C., and Stephen Reinhardt, Los Angeles, Cal., were on the brief, for petitioner.

Mr. Hans J. Lehmann, Attorney, National Labor Relations Board, with whom Messrs. Stuart Rothman, General Counsel, Dominick L. Manoli, Associate General Counsel, and Marcel Mallet-Prevost, Asst. General Counsel, National Labor Relations Board, were on the brief, for respondent.

Before BAZELON, Chief Judge, and FAHY and BURGER, Circuit Judges.

FAHY, Circuit Judge.

Petitioner, the Union, seeks to have set aside, and respondent, the Board, seeks enforcement of, a Board order. The Board found that the Union threatened, coerced and restrained Hillbro Newspaper Printing Company, an employer, with an object of forcing or requiring it "to enter into" an agreement declared to be unlawful by section 8(e) of the National Labor Relations Act as amended,¹ thereby committing an unfair labor practice defined in section 8(b) (4) (ii) (A).² Stated otherwise, the Board found that the Union had threatened, coerced and restrained Hillbro with an object of requiring it to enter into a "hot cargo" contract.

The facts are essentially as follows: Hillbro publishes the Los Angeles Examiner, a newspaper which in its Sunday Edition was to have contained a weekly television booklet at the times here pertinent. The Union was the representative of Hillbro's mail room employees. Prior to the enactment of section 8(e) Hillbro and the Union had entered into a collective bargaining agreement which had not expired when the present difficulties arose. Section 8 of the agreement reads as follows:

"The Employer shall not require employees covered by this agreement, and the union reserves the employees\' right, to refuse to process material received from, or destined for, job shops or newspaper mailing rooms (other than the mailing room of the Employers signatory to this contract), in which an authorized strike by, or a lockout of, a subordinate union of the International Typographical Union is in progress. The union will give the Employer forty-eight (48) hours\' notice that a strike or lockout is in progress before the processing of materials may be stopped in accordance with the foregoing provisions."

The Union also represented the mail room employees of Pacific Neo Gravure, Division of the Cuneo Press, Inc., called Pacific. Hillbro had engaged Pacific to print and handle the television booklets for use in the Examiner. The president of the Union advised the business manager of the Examiner that the Union was in a labor dispute with Pacific over the question whether Pacific should assign certain work to members of the Union or to members of another union. The Union president told the Examiner's president that the newspaper could be "headed for trouble" in the distribution of the TV booklet because of this dispute at Pacific, and that if Pacific persisted in assigning the work to members of another union the Union would consider itself locked out by Pacific and section 8 of the Union's contract with Hillbro, set forth above, would become operative, in which case the employees of Hillbro who were members of the Union could refuse to handle the television booklet for Hillbro. Hillbro took the position that section 8 of its agreement with the Union was unlawful by reason of section 8(e) of the Act, and that if the Union took action under section 8 of the agreement it would be violating section 8(b) (4). Thereafter the Union gave notice to Hillbro under section 8 of the agreement that a strike or lockout was in progress at Pacific. In a subsequent conversation with Hillbro's representative the Union president indicated that the Union had been advised by its attorney that section 8 of the agreement was lawful.³

We think, with the Board, that the facts as above set forth, which are based on the record, support the Board's finding of threats, coercion and restraint used by the Union against Hillbro. The Union contends, however, that such conduct could not have had as an object to force or require Hillbro "to enter into" section 8 of the agreement, because the agreement had previously been entered into and, therefore, the conduct was not within the condemnation of section 8(b) (4) (ii) (A) of the Act.⁴

The position of the Board is that since the Union sought to make the employer live up to the "hot cargo" provision, that is, to treat it as being in effect, this in substance was to seek to have it entered into even though in a literal sense the parties by executing it had previously entered into it. We are constrained to agree with the Board. The thrust of Congress' effort in this area of the secondary boycott has been to do away entirely with contracts which come within section 8(e), whether executed before or subsequent to November 13, 1959, when sections 8(b) (4) (ii) (A) and 8(e) became effective. Any such contractual provision is declared to be unenforcible and void notwithstanding it was in existence when section 8(e) was enacted. To seek to give it life is in substance to seek to have it agreed to, which is no different in substance from seeking to have it entered into. As the Court of Appeals for the Fifth Circuit has recently stated,

"It cannot now be doubted that Congress has banned agreements whereby an employer refrains or agrees, expressly or impliedly, to refrain from handling the work of another employer, and these clauses must be so tested. * * *"⁵

We may give language in a statute, if it will reasonably bear such a construction, the meaning Congress intends, though read literally it would bear a different meaning. The courts are under an obligation at times to do this in order to give legislation its proper application. Lynch v. Overholser, 369 U.S. 705, 710, 82 S.Ct. 1063, 8 L.Ed.2d 211, and cases cited. The courts have less reluctance in this regard when the interpretation they approve has been adopted by the agency charged with principal responsibility for administering the legislation, acting in the light of its special experience and expertise. Cf. Transcontinent Television Corp. v. F.C.C., 113 U.S.App.D.C. 384, 308 F.2d 339.

The following discussion of the problem, taken from the Board's decision in this case, seems to us sound:

"We believe Congress sought by Section 8(e) to free the neutral employer from the inhibitions of any prior contractual commitment to boycott another employer. This freedom is important to the neutral employer not just at the time of signing the contract and in the 6-month period following. It is important at the time of the labor dispute in which the union seeks to apply the contract provision and to induce the neutral employer to engage in the boycott. Only by construing 8(e) as we do can it serve to maintain for the neutral employer, free from the restrictions of a prior contract, the `freedom of choice at the time the question whether to boycott or not arises in a concrete situation,\' citing Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL v. N.L.R.B., 357 U.S. 93, 105, 78 S.Ct. 1011, 2 L.Ed.2d 1186."

The Union contends that in any event section 8 of the agreement is not unlawful under section 8(e) of the Act, that is, it is not a "hot cargo" clause. Although the Examiner and two members of the Board differ with the holding of the majority that the Union's conduct comes within the "to enter into" language of section 8(b) (4) (ii) (A),...