NLRB v. INTERNATIONAL LONGSHORE. ASS'N, LOC. NO. 1581

• Decision Date: 16 April 1974
• Docket Number: No. 73-1245.,73-1245.
• Citation: 489 F.2d 635
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL NO. 1581, AFL-CIO, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

489 F.2d 635 (1974)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL NO. 1581, AFL-CIO, Respondent.

No. 73-1245.

United States Court of Appeals, Fifth Circuit.

February 19, 1974.

Rehearing Denied April 16, 1974.

Elliott Moore, Acting Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Clifford W. Potter, Dir. Region 23, N.L.R.B., Houston, Tex., Joseph E. Mayer, Washington, D. C., for petitioner.

Warner F. Brock, Gerald J. Goodwin, Houston, Tex., for respondent.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

WISDOM, Circuit Judge:

The National Labor Relations Board petitions for enforcement of its order against the respondent International Longshoremen's Association, Local No. 1581, AFL-CIO. The order directs the Union to desist from maintaining and enforcing a discriminatory agreement allowing preferences in job referrals to be based upon citizenship and residence of a prospective employee's family and requires the Union to take affirmative action to make whole an employee, Elias Gonzalez Guerra, for loss of pay suffered by him as a result of the discrimination. We grant enforcement.

The facts were stipulated before the Board's Administrative Law Judge. The Union represents employees in both the dock and commodity department and the cotton compress and cotton warehouse department of the Manchester Terminal Corporation, a company with its principal place of business in Houston, Texas. A single labor agreement covers employees in both departments. All rates of pay for the eleven job classifications in the dock and commodity department are higher than any of the rates of pay for the forty-odd classifications in the cotton compress and cotton warehouse departments.

During contract negotiations in 1965, the Union requested that union job referrals to the employer give preference to United States citizens. Manchester acceded to the request. Accordingly, the Union established a priority system for referrals by the Union for jobs in the preferred dock and commodity department. Under this system, highest priority went to United States citizens; second priority went to Mexican nationals with families residing in the United States; and lowest priority went to Mexican nationals whose families remained in Mexico. Only United States citizens or persons who had declared their intention to become United States citizens were eligible for membership in the Union.

Guerra was employed by Manchester in 1960, and worked in the dock and commodity department from 1963 until September 7, 1965. Guerra is a Mexican citizen and maintains his family in Mexico. After Manchester and the Union had agreed to establish a system of priorities for job referrals based on citizenship, Guerra was transferred, at the Union's request, from the dock and commodity department to the cotton compress and warehouse department, on September 7, 1965. At the time Guerra was told he could not have permanent employment in the dock and commodity department unless he became a United States citizen or moved his family from Mexico. Guerra has worked regularly in the cotton compress and warehouse department since September 7, 1965.

There were differences in the hospitalization plan effective for the workers in the two departments. Under the hospitalization plan effective for the dock and commodity department, both the employee and his family are eligible for hospitalization benefits. Under the plan in effect for workers in the cotton compress and cotton warehouse department, only the employee is eligible for hospitalization benefits.

Guerra brought unfair labor practice charges on October 7, 1965. The Board issued a complaint on May 28, 1971, alleging unfair labor practices under § 8(b)(1)(A), (b)(2) of the National Labor Relations Act, 29 U.S.C. § 158(b)(1)(A), (b)(2) (1970). The Board's Administrative Law Judge issued his decision, recommending dismissal of the complaint, on October 27, 1971. On May 22, 1972, the Board reversed the Administrative Law Judge and issued the order it seeks here to have enforced.¹

Section 8(b)(2) of the National Labor Relations Act makes it an unfair labor practice "to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) of this section". Subsection (a)(3) makes it an unfair labor practice for an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization". Under the Supreme Court's decision in Radio Officers' Union v. NLRB, 1954, 347 U.S. 17, 42-43, 74 S.Ct. 323, 98 L.Ed. 455, a violation of § 8(b)(2) may be found if two elements are present: (1) an impermissible discrimination by the Union, which (2) causes or tends to result in the encouragement or discouragement of union membership.

In this case, there was substantial evidence to support a finding by the Board that the first of these elements was present. Section 8(b)(2) is not concerned solely with situations where the discrimination involved is between union members and nonmembers, or between "good" members and "bad, or indifferent" members (see Radio Officers, supra, 347 U.S. at 40). It applies where the union has induced the employer to discriminate on the basis of any invidious or arbitrary classification, such as the classification based upon alienage involved in this case. NLRB v. Miranda Fuel Co., 2 Cir. 1963, 326 F.2d 172, 180-186 (Friendly, J., dissenting); Sovern, The National Labor Relations Act and Racial Discrimination, 1962, 62 Colum.L.Rev. 563, 569-71; cf. Local Union No. 12, United Rubber, etc. Workers of America v. NLRB, 5 Cir. 1966, 368 F.2d 12.

The Supreme Court has made it clear that "classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny." Graham v. Richardson, 1971, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534. "Although the Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores . . . once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders." Hellenic Line Limited v. Rhoditis, 1970, 398 U.S. 306, 309 n. 5, 90 S.Ct. 1731, 1734, 26 L.Ed.2d 252, quoting from Bridges v. Wixon, 1945, 326 U.S. 135, 161, 65 S.Ct. 1443, 89 L.Ed. 2103 (Murphy, J., concurring). The Supreme Court has struck down state classifications designed "to prevent lawfully admitted aliens within its borders from earning a living in the same way that other state inhabitants earn a living." Takahashi v. Fish and Game Commission, 1948, 334 U.S. 410, 418-419, 68 S. Ct. 1138, 1142, 92 L.Ed. 1478; see Truax v. Raich, 1915, 239 U.S. 33, 38-42, 36 S.Ct. 7, 60 L.Ed. 131. Since classifications based on citizenship, like classifications based on race, are arbitrary and invidious, the Board properly determined that the Union engaged in impermissible discrimination under the Act when it caused Guerra's transfer because he was an alien. See, NLRB v. Local 1367, ILA, C.A. 5, 1966, 368 F.2d 1010, cert. denied, 389 U.S. 837, 88 S.Ct. 58, 19 L.Ed.2d 99 (violation of Section 8(b)(2) and (1)(A) for union to cause employer to...