NLRB v. Houston Chap., Asso. Gen. Con. of America, Inc.

Citation349 F.2d 449
Decision Date14 September 1965
Docket NumberNo. 21327.,21327.
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOUSTON CHAPTER, ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC., and Construction Employers' Association of Texas, Respondents.
CourtU.S. Court of Appeals — Fifth Circuit

Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Melvin Wells, Atty., Arnold Ordman, Gen. Counsel, Marion Griffin, Atty., N. L. R. B., Washington, D. C., for petitioner.

V. R. Burch, Jr., L. G. Clinton, Jr., H. L. Deakins, Jr., John B. Abercrombie, Houston, Tex. (Fulbright, Crooker, Freeman, Bates & Jaworski, Baker, Botts, Shepherd & Coates, Houston, Tex., of counsel), for respondents.

Howard M. Fender, Asst. Atty. Gen. of Texas, Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., Edward R. Moffett, Robert W. Norris, Asst. Attys. Gen., Austin, Tex., for intervenor.

Chris Dixie, Houston, Tex., Robert Connerton, Washington, D. C., Dixie & Schulman, James F. Wolf, Houston, Tex., for charging party.

Louis Sherman, Sherman, Dunn & Sickles, Washington, D. C., proposed amicus curiae.

Before GEWIN and BELL, Circuit Judges, and McRAE, District Judge.

GRIFFIN B. BELL, Circuit Judge:

This petition of the National Labor Relations Board for enforcement of its order finding respondents in violation of § 8(a) (5) and (1) of the Act1 presents a unique labor law question. Respondents are non-profit corporations with memberships consisting of employers engaged in the building and construction trade in Texas. The unfair labor practice charge which gave rise to the petition to enforce was filed by the Construction and General Laborers Union, Local No. 18, International Hod Carriers, Builders and Common Laborers Union, AFL-CIO, the statutory bargaining representative for the hod carriers and laborers employed by the contractors forming respondents' membership. The unfair labor practices occurred in Houston, Texas where respondents have their principal offices and places of business. Each respondent is the collective bargaining agent for its respective employer members, and the activities of the members admittedly affected interstate commerce in the degree required to give the Board jurisdiction.

Respondents and the Union began negotiating for a new contract several weeks prior to the expiration date, October 31, 1961, of the then existing contract. The union proposed that the contract include a provision for a non-discriminatory union hiring hall. The terms, among others, of the tendered provision were that the hiring hall would be the sole source of employees for the various contractors represented by respondents, that the union would select and refer applicants on the basis of such factors as seniority in employment by the respective contractors, length of residence in the area, and general work experience in the trade, but without discrimination by reason of membership or non-membership in the union. The employer was to retain the right to reject any applicant for employment, and the right to discharge any employee for good cause who had been accepted, but whose services consequently proved unsatisfactory. The hiring hall proposal had reference, of course, only to employees in the categories represented by the union.

Respondents rejected the proposal on the advice of counsel that a non-discriminatory union hiring hall was illegal under the Texas right to work laws which generally provide that no person shall be denied employment on account of membership or non-membership in a labor union.2 Upon the expiration of the existing contract, the union called a strike in support of its contract demands including the demand for the hiring hall. A Texas state court enjoined the strike on the basis that a hiring hall agreement would contravene the public policy embodied in the Texas right to work laws. The parties subsequently entered into a contract substantially similar to the old contract, but without prejudice to the union pursuing its rights with respect to the hiring hall question. The union then filed a charge with the Board alleging that respondents had violated § 8(a) (5) and (1) of the Act by refusing to bargain regarding the hiring hall proposal. The trial examiner sustained the unfair labor practice complaint issued on this charge.

The board affirmed, holding, with two members dissenting, that the hiring hall question presented a mandatory subject of bargaining under § 8(d) of the Act, 29 U.S.C.A. § 158(d). The board, as had the examiner, rejected the contention of respondents that the hiring hall proposal would constitute an agreement requiring membership in a labor organization as a condition of employment within the meaning of § 14(b) of the Act, 29 U.S. C.A. § 164(b). This section leaves control of this question to the states where they choose to prohibit such a requirement.

We enforce. In our view the hiring hall clause in question was a mandatory subject of collective bargaining under the Act, and it does not fall under the § 14 (b) exception.

It is now settled law that a labor contract providing for a non-discriminatory hiring hall is legal, absent the actual practice of discrimination under the agreement. Local 357, International Brotherhood of Teamsters, etc. v. N. L. R. B., 1961, 365 U.S. 667, 81 S. Ct. 835, 6 L.Ed.2d 11. But, the question whether a demand for such a clause falls within the class of mandatory subjects of bargaining, thus making it lawful to insist on their inclusion in labor agreements, depends on whether the demand comes within the meaning of the language "* * * wages, hours, and other terms and conditions of employment * * *" in § 8(d) of the Act.3

Respondents urge that this language does not cover the obtaining of employment but is instead limited to those conditions which arise after an actual employment relationship has been established. They point to the inclusion of the term "hire" in § 8(a) (3), 29 U.S. C.A. § 158(a) (3), which makes it an unfair labor practice to discriminate "* * * in regard to hire or tenure of employment or any term or condition of employment * * *", and the fact that "hire" is not included in § 8(d) to support this contention. The argument is that the omission was intentional and thus the hiring process is not embraced in § 8(d). However, § 8(d) also fails to mention "tenure of employment" while this clause is present in § 8(a) (3), and it has been held that "tenure of employment" is a condition of employment and subject to mandatory bargaining. See Fiberboard Paper Products Corp. v. N. L. R. B., 1964, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233. Cf. Town & Country Mfg. Co. v. N. L. R. B., 5 Cir., 1963, 316 F.2d 846. The terms of hiring in this particular industry, such as would provide for the establishment of a seniority system through the use of a hiring hall, no less than tenure, are terms and conditions of employment.

Respondents also urge that § 8(d) is limited in scope to no more than what is allowed under the 1959 amendment to the Act set out in § 8(f), 29 U.S.C.A. § 158(f), which amendment would prohibit a strike to obtain the hiring hall clause. Section 8(f), in pertinent part, permits an employer in the building and construction industry to make a contract with a union before the union's majority is established to provide that the employer will notify the union of employment opportunities, or give such union an opportunity to refer qualified applicants for such employment. The amendment makes such a contract legal when absent the amendment it would not be, because of the union not having a majority, but the contract is not a mandatory subject of bargaining so that strike action in support of obtaining it is authorized. N. L. R. B. v. Int. Hod Carriers, 8 Cir., 1960, 285 F.2d 397, cert. den., 366 U.S. 903, 81 S.Ct. 1047, 6 L.Ed.2d 203. See 1 Leg.Hist. of LMRDA, pp. 424-425, 452, 946 (1959). The union in the case at bar was the statutory bargaining agent and § 8(f) is not applicable here by way of limitation or otherwise.

The case of N. L. R. B. v. Wooster Division of Borg-Warner Corporation, 1958, 356 U.S. 342, 350, 78 S.Ct. 718, 2 L.Ed.2d 823, furnishes a guide for the application of the language of § 8(d)...

To continue reading

Request your trial
42 cases
  • Associated General Contractors v. Otter Tail Power
    • United States
    • U.S. District Court — District of South Dakota
    • 6 Noviembre 1978
    ...Labor Relations Board v. Tom Joyce Floors, Inc., 353 F.2d 768 (9th Cir. 1965); National Labor Relations Board v. Houston Chapter, Associated General Contractors of America, Inc., 349 F.2d 449 (5th Cir. 1965); National Labor Relations Board v. Bechtel Corporation, 328 F.2d 28 (10th Cir. 1964......
  • Brockway Motor Trucks, Div. of Mack Trucks, Inc. v. N.L.R.B.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 19 Julio 1978
    ...1968); NLRB v. George P. Pilling & Son Co., 119 F.2d 32, 38 (3d Cir. 1941).32 See, e. g., NLRB v. Houston Chapter, Associated General Contractors of America, Inc., 349 F.2d 449, 451 (5th Cir. 1965).33 See, e. g., Perry Rubber Co., 133 NLRB 225, 48 LRRM 1630 (1961).34 See, e. g., NLRB v. Wes......
  • Mobil Oil Corp. v. Oil, Chemical and Atomic Workers Intern. Union, AFL-CIO
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 8 Noviembre 1974
    ...Ass'n v. Schermerhorn, 1963, 375 U.S. 96, 98, 84 S.Ct. 219, 220, 11 L.Ed.2d 179 (Schermerhorn II); NLRB v. Houston Chap., Asso. Gen. Con. of America, Inc., 5th Cir. 1965, 349 F.2d 449, 453. The national labor policy expressed in these sections of the Taft-Hartley Act is one which directly a......
  • Clarett v. National Football League
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 24 Mayo 2004
    ...as mandatory subjects of bargaining. See Associated Gen. Contractors of America, Houston Chapter, 143 N.L.R.B. 409, 412, enforced, 349 F.2d 449 (5th Cir.1965) ("`[E]mployment' connotes the initial act of employing as well as the consequent state of being employed."). In such hiring hall arr......
  • Request a trial to view additional results
1 firm's commentaries

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT