NLRB v. Amalgamated Lithographers of America (Ind.)
| Decision Date | 09 November 1962 |
| Docket Number | No. 17410.,17410. |
| Citation | 309 F.2d 31 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AMALGAMATED LITHOGRAPHERS OF AMERICA (IND.) and Local No. 17 of the Amalgamated Lithographers of America (Ind.), Respondents, Lithographers and Printers National Association, Employing Lithographers Association, a Division of the Graphic Arts Employers Association, Intervenors. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Samuel M. Singer, and Morton Namrow, Attys., Washington, D. C., for petitioner.
Robinson, Silverman, Pearce & Aronsohn, Benjamin M. Robinson, Matthew Silverman, and Leonard B. Sand, New York City, for respondents, Amalgamated Lithographers of America (Ind.) and Local 17, Amalgamated Lithographers of America (Ind.).
Garry, Dreyfus, McTernan & Keller, and Francis J. McTernan, San Francisco, Cal., for respondent, Local 17, Amalgamated Lithographers of America (Ind.).
Helen F. Humphrey, Washington, D. C., for intervenor Lithographers & Printers Nat. Assn. Inc.
Littler, Mendelson, & Saltzman, and Robert Littler, San Francisco, Cal., for intervenor Employing Lithographers, a Div. of Graphic Arts Employers Assn.
Before HAMLEY, HAMLIN and BROWNING, Circuit Judges.
The National Labor Relations Board has petitioned this court for enforcement of its order entered against respondent unions, and reported in 130 NLRB (102) 985.1 Two employer-groups were intervenors in the Board proceeding and have been permitted to intervene here.2
The primary question presented is whether certain clauses which the unions sought to have included in collective bargaining agreements are "hot cargo" clauses proscribed by section 8(e) of the National Labor Relations Act, as amended (Act), 29 U.S.C.A. § 158(e).3 Finding that they were unlawful, the Board concluded that the unions violated section 8(b) (4) (A) and (B) of the Act, 29 U.S.C.A. § 158(b) (4) (A) and (B), by striking and invoking an overtime ban to obtain such clauses.
The Board further found that the unions, by resorting to these pressures and insisting upon the inclusion of the clauses, refused to bargain in good faith in violation of section 8(b) (3), 29 U.S.C.A. § 158(b) (3). Finally, the Board found that the unions violated section 8(e), by entering into agreements with certain employers reinstating an expired collective bargaining contract containing clauses of this kind.
Consistent with these findings the Board ordered the unions to cease and desist from such practices and to post notices and take other affirmative action of a kind which is customary in such cases.
Local 17 is the bargaining representative of lithographic employees who work for the fifteen employer-members of the Association. It also represents the lithographic employees of more than a hundred other employers in Northern California, herein called "Independents", who are not members of the Association. Among these Independents are Schwabacher-Frey Co., Neal Stratford & Kerr, Merrill Reed Lithographers, and Hogan-Kaus Lithograph Co., herein called Schwabacher, Neal, Merrill and Hogan. There are also additional lithographic employers in Northern California who are not members of the Association but with whom members transact business. The employees of this group of employers are unorganized or are represented by other unions not involved in this proceeding.
Under customary procedure, Local 17, with the approval of the International, first negotiates a "master agreement" with the Association. It then executes separate contracts with each Independent adopting the provisions of the master agreement. The most recent master agreement was one which became effective on October 22, 1957, subject to termination on October 18, 1959, upon sixty days' notice.
This contract contained clauses relating to struck work and trade shops which were lawful at the time the contract was executed. On September 14, 1959, however, the Labor-Management Reporting and Disclosure Act of 1959 (Landrum-Griffin Act) was enacted amending, effective November 13, 1959, section 8 of the Act. Section 8(e), thereby added to the Act, had the effect, as respondents concede, of invalidating the indicated clauses of the 1957 agreement as of November 13, 1959.
About August 17, 1959, Local 17 advised the Association and each Independent of its desire to terminate the existing agreement on October 18, 1959. At the same time Local 17 requested that representatives of the Association meet with it in order to negotiate a new contract. Negotiations between the parties were initiated on September 9, 1959, and about sixteen meetings between Local 17 and the Association were thereafter had.
Commencing about October 12, 1959, Local 17 with the authorization and approval of the International, demanded that the Association agree to inclusion in the new contract of the five clauses which the Examiner and Board later found to be illegal "hot cargo" clauses. The Association refused to agree to these contract demands. Thereafter the parties were concerned in their negotiations with two principal items, a raise in wages for the employees, and these contract clauses demanded by the unions.
On October 18, 1959, Local 17 instituted a ban on overtime work. Negotiations finally reached an impasse on November 20, 1959, and three days later the unions instituted a strike. On or about November 21, 1959, Schwabacher, Neal, Hogan and Merrill, and some other Independents entered into agreements with Local 17 whereby they were permitted to continue operations pending the negotiation of a new contract with the Association.
The NLRB proceedings were instituted on October 26, 1959. On December 7, 1959, the Board's regional director, pursuant to section 10(l) of the Act, 29 U.S. C.A. § 160(l), instituted injunction proceedings in the District Court for the Northern District of California, Southern Division. On January 13, 1960, the district court filed a decision finding the strike unlawful, ordering a temporary injunction, and requesting the regional director to submit a form of findings, conclusions, decree and writ.4 The general counsel of the Board submitted such forms but the unions objected to them and no final decree was ever entered. On January 30, 1960, respondents and the Association agreed upon terms of a new collective bargaining contract and the strike was terminated.
We first consider the union's contention that the Board erred in finding and concluding that the five questioned clauses which the union sought to have included in the new agreement were proscribed by section 8(e) of the Act.
The first of these is the "trade shop" clause, set out as section 22 of the contract tendered by the unions.5 The Board found and concluded that this clause constitutes an implied agreement that the employer will not handle any non-union work.
Respondents do not deny that if the trade shop clause constitutes an implied agreement of that kind, it is proscribed by section 8(e) quoted in note 3 above. They argue, however, that the clause leaves it completely to the discretion of the employer whether he wants to handle the work of a non-union shop, there being no provision of the clause which expressly or by implication requires him to refrain from doing business with such a shop.
Respondents recognize that, in the event the employer does do business with a non-union shop, the clause in question entitles the unions to reopen the entire contract for negotiations, and to terminate the contract if agreement is not reached within ten days. But respondents contend that these provisions have only an incidental effect upon the course an employer may choose in regard to handling non-union work or dealing with non-union employees, and do not amount to an implied agreement of the kind found by the Board.
Moreover, respondents argue, the trial examiner rejected their offers of proof which would have established that the purpose of the clause was not to forbid employers from dealing with non-union shops, but to enable the unions to reassess their economic demands in the event the employer followed such a practice. Thus, respondents argue, a change of this kind in the employer's method of operation would require new contractual arrangements covering such matters as increased wages or decreased hours of work in the light of the employer's increased profits, modification of apprentice ratios, establishment of an out-of-work fund, and revisions in the jointly-administered pension plan.
Under the trade shop clause in question, the entire contract is predicated on the assumption that the employer will not handle any non-union goods. The employer agrees that he will deal with non-union employers only at the risk of giving up all of his benefits under his contract. In our opinion this provision and the "refusal to handle" clause discussed below, considered together, amount to an implied agreement not to deal with such employers.
The proffered evidence which was rejected by the trial examiner tended to show that it was economically advantageous for the union to have employers refrain from dealing with non-union employers. But the prohibition of section 8(e) is a broad one. Agreements of this kind, whether express or implied, are not made lawful by economic necessity.
We conclude that the Board did not err in finding and concluding that the trade shop clause is proscribed by section 8(e) of the Act. In this regard we are in agreement with the view expressed in Employing Lithographers of Greater Miami, Florida v. N. L. R. B., 5 Cir., 301 F.2d 20; and Brown v. Local No. 17, Amalgamated Lithographers, D.C.N.D. Cal., 180 F.Supp. 294, 302-303.
The second questioned clause is the "struck work" clause, which appears as section 23(a) of the contract tendered by the unions.6 The...
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