Rabouin v. National Labor Relations Board

• Decision Date: 24 March 1952
• Docket Number: No. 151,Docket 22063.,151
• Parties: RABOUIN v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Second Circuit

195 F.2d 906 (1952)

RABOUIN v. NATIONAL LABOR RELATIONS BOARD.

No. 151, Docket 22063.

United States Court of Appeals Second Circuit.

Argued January 17, 1952.

Decided March 24, 1952.

COPYRIGHT MATERIAL OMITTED

Harold Dublirer, New York City, for petitioner.

Bernard Dunau, Atty., National Labor Relations Board, Washington, D. C. (George J. Bott, Gen. Counsel, David P. Findling, Asso. Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and William J. Avrutis, Atty., National Labor Relations Board, all of Washington, D. C., on the brief), for respondent.

Herbert S. Thatcher, Washington, D. C. (Harry Pozefsky, Gloversville, N. Y., and J. Albert Woll, James A. Glenn, and Joseph E. Finley, all of Washington, D. C., on the brief), for Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, intervenor.

Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

This case comes to us on petition to review and set aside an order of the National Labor Relations Board in so far as it dismissed a complaint charging a union with unfair labor practices under § 8(b) (2), (b) (4) (A), and (b) (6) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 158(b) (2), (b) (4) (A), and (b) (6). 87 N.L.R.B. 972. The petitioner, Henry V. Rabouin, is engaged in interstate motor trucking under the business name of Conway's Express, in Albany, New York. The union, Local 294 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL — granted leave to intervene on this appeal — is the local labor organization in the trucking field.

The dispute arose during the term of an area collective bargaining agreement negotiated with the union in October, 1946, by the Highway Transport Association of Up-State New York, of which Rabouin was an active member and which he had appointed to act as his "sole representative" during the negotiations. The agreement was designed to take the place of a previous one which was about to expire. Accordingly, when its terms were finally accepted by the union and the Association representatives, two copies of the contract, signed by the former, were distributed to the Association members for their signatures. Though a party to the prior 1944-1946 agreement, Rabouin failed to sign or return his copies; thus, although he complied with its terms in all respects save that involved in the present dispute, his formal ratification or rejection remained in doubt until late in 1947. Inter alia, this contract provided for a closed shop, a grievance adjustment procedure, and a defined wage scale — requirements designed to bind uniformly all trucking employers in the area.

At the time the contract negotiations were in progress, Rabouin arranged to lease certain of his equipment to the Middle Atlantic Transportation Company of New Britain, Connecticut, when required by the latter to transport freight for which it had no equipment of its own available. The Board found that from the beginning Rabouin hired only non-union men for these runs. In January, 1947, the union protested against this practice as a violation of the closed-shop provision of the area contract and demanded that Rabouin hire only members of the union. Upon his refusal the dispute was submitted to the Joint Grievance Board established by the contract. Despite Rabouin's claims that he did not control the Atlantic run drivers or equipment, the Joint Grievance Board found that he had violated the contract. Rabouin then agreed to abandon the runs and dispose of the excess equipment thus employed, alleging that the Atlantic arrangement would not economically permit him to honor the union wage scale.

Nonetheless he continued to provide drivers and trucks for Atlantic trips. On September 10, 1947, the union, once again on notice of his use of non-union employees, called a strike of its eight members at Rabouin's Albany terminal. Two days later Rabouin entered into settlement negotiations with the union and, for the first time, formally disavowed the contract. In reply the union established three conditions for a strike settlement: (1) the payment to the union of wages equivalent to those paid on the September 10th run, (2) Rabouin's signature on the contract "without the arbitration clause," and (3) a $5,000 performance bond. This last was designed to insure its members against wage defaults which had occurred in the past. Rabouin consented to these conditions, but failed to perform, assigning his inability to secure the bond, and the settlement negotiations failed.

The union then moved to bring other pressures on Rabouin, who continued local operations with non-union drivers. At least three different companies honored its request — each time addressed to either representatives of management or supervisors — not to accept his shipments; and some three others, as parties to the area agreement which contained a struck cargo provision, voluntarily refused to permit him to unload freight at their terminals.

The strike of the Rabouin employees was finally enjoined on January 17, 1948, following a preliminary injunctive proceeding brought by the General Counsel under § 10(j, l) of the Act, 29 U.S.C.A. § 160 (j, l). Douds v. Local 294, D.C.N.D.N.Y., 75 F.Supp. 414. After the trial examiner's hearing and intermediate report, the Board found that the Union had violated § 8(b) (1) (A) guaranteeing an employee's right not to engage in a strike, by its coercive threats to one of Rabouin's non-union drivers during the strike, and § 8(b) (3) in failing to bargain collectively, by its demand for the performance bond — issues not appealed by the union. It refused to find, however, that the September, 1947, settlement move for a closed shop was illegal, that the strike constituted a secondary boycott, or that the demand that Rabouin make up wages lost on the September 10th Atlantic run was an "exaction." This petition for review questions the validity of these determinations.

Petitioner's first contention, that the union's proposed settlement in September, 1947, violated the anti-closed-shop provisions of § 8(b) (2), raises the question whether this demand is to be interpreted as a requirement that Rabouin "enter into" a closed-shop agreement or, as the Board found, that he merely "furnish evidence" of a previous obligation to this effect. For the Labor Management Relations Act was enacted on June 23, 1947, or prior to the union's settlement offer, but subsequent to the area contract. While this Act outlawed the closed shop, it contained a provision, § 102, 29 U.S.C.A. § 158 note, making this prohibition inapplicable to contracts made before its enactment. Hence if Rabouin was bound by the area contract, and never discharged from its obligation, it remains in effect until the end of its twoyear term.

We agree with the Board that Rabouin was a party to the pre-existing area contract. It was negotiated on his behalf. He enjoyed its benefits of general labor accord. He complied with its wage scales. And he exploited its grievance adjustment procedure when first threatened with a union dispute in January, 1947, and agreed to abide by the Joint Grievance Board's conclusion that the closed-shop provision applied to his Atlantic arrangement.

Moreover, his claim that the union may not rely on the previous contract because of his own failure formally to ratify it is not only inconsistent with his own actions; it is without legal substance as well. There is nothing in the Act which compels the conclusion that collective bargaining contracts must be formally attested by the parties; rather, § 8(d), codifying the rule of H. J. Heinz Co. v. N. L. R. B., 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309, specifically provides for a written agreement "if requested by either party" — clear evidence that a writing is not mandatory as a matter of law. Hamilton Foundry & Machine Co. v. International Molders & Foundry Workers, 6 Cir., 193 F.2d 209, 214. Rabouin's failure to sign the contract during his compliance with it thus cannot affect the Board's conclusion that he was bound by its closed-shop provisions; any other result would force the give-and-take reality of labor relations into a strait-jacket of lawyers' technicalities.

But petitioner also alleges the invalidity of the 1946 contract as to him on the ground that the New York Statute of Frauds, N.Y.Personal Property Law, McK.Consol.Laws, c. 41, § 31, voids all agreements not to be performed within one year which are not signed by the party to be charged. The contention can have no weight; the vagaries of state rules of law may not override provisions of a federal act geared to the effectuation of an important national labor policy. Hill v. State of Florida ex rel. Watson, Atty. Gen., 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782; N. L. R. B. v. Hearst Publications, 322 U.S. 111, 123, 64 S.Ct. 851, 88 L.Ed. 1170. A state statute of frauds, no matter what its wording, cannot transform into an unfair labor practice activity under the Act otherwise validated by a binding oral contract between employer and union. Cf. Hamilton Foundry & Machine Co. v. International Molders & Foundry Workers, supra, 193 F.2d at page 215.

Moreover, even under the provisions of the New York statute, the contract is merely rendered unenforceable in an affirmative action; it may nonetheless be used, as here, in support of a proper defense to some claim of tort, 2 Corbin on Contracts § 299, supplementing § 279, 1950, or breach of contract asserted by the non-signatory party, De Beerski v. Paige, 36 N.Y. 537; Restatement, Contracts, N.Y.Annot. 113, 1933. Even if the union were barred from alleging Rabouin's violation of § 8(a) by failure to comply with the contract, yet, where the latter seeks to exploit his own dereliction as a ground for relief, the contract may be shown despite the fact that he did not sign it. For in such a case Rabouin is not the...