Before LUMBARD, Chief Judge, MOORE and FRIENDLY, Circuit Judges.
Crawford Clothes, Inc., a manufacturer, and Building Material Teamsters, Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereafter referred to as Local 282, have petitioned for review of an order of the National Labor Relations Board finding them guilty of unfair labor practices.The Board has answered, seeking enforcement of its order.
Crawford Clothes is a New York corporation, having its principal office and place of business in Long Island City and being engaged, there and elsewhere, in the manufacture and interstate sale and distribution of clothing. In 1946 Local 282 was designated as the collective bargaining representative of Crawford's drivers and helpers at the Long Island City plant. At the time of the proceedings before the National Labor Relations Board the most recent collective bargaining agreement between Crawford and Local 282 was one effective from September 1, 1956 to August 31, 1958.
The origin of the proceedings was a charge filed against Crawford and Local 282 on November 1, 1957, by Robert Cross. Cross had entered Crawford's employ in 1936, as a helper on a truck. He later became a driver. Save for duty in the armed services during World War II and a two-months' layoff for reduction in force, he was continuously employed from 1936 until May 10, 1957, when he was again laid off in a reduction of force. His charge was that Crawford had laid him off as a driver at the request of Local 282 although he "was entitled to bump one of the helpers who had less seniority" and had refused to call him back to work although it had work for him. Cross had long been a member of Local 282.
In the course of its investigation of Cross' charge, the Board looked into the collective bargaining agreement. It found that § 5 contained the provisions set forth in the margin,*fn1 and that § 9 provided as follows:
"Employers shall hire only union loaders when available, and not less than three men must help the chauffeur or driver to load his trucks or automobile. This provision shall not apply to the unloading of trucks or equipment."
General Counsel on behalf of the Board issued an "Order Consolidating Cases, Complaint and Notice of Hearing." The complaint alleged that the quoted provisions of the collective bargaining agreement constituted an unfair labor practice by Crawford within § 8(a)(1) and (3) and by the Local within § 8(b)(1)(A) and (2) of the National Labor Relations Act, 29 U.S.C. § 158.It alleged also that Crawford and Local 282 had an understanding giving the Local control over the seniority ranking of Crawford's employees, that Crawford discharged Cross and refused to reinstate him because of such understanding, and that this was a further unfair labor practice by Crawford and the Local.
At the hearing Crawford and the Local moved to dismiss so much of the complaint as concerned the alleged illegality of the collective bargaining agreement. They contended this claim was not related to Cross' charge and hence could not be entertained by the Board consistently with § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), which empowers the Board only to issue "a complaint stating the charges in that respect." The trial examiner denied the motion. All the testimony at the hearing related to seniority and the alleged improper discharge of Cross.
At the time of Cross' discharge the unit represented by Local 282 consisted of three drivers and three helpers. The examiner found that there had been separate seniority lists of drivers and helpers at least since 1946 and that Cross' seniority was the lowest of the three drivers although superior to all three of the helpers. He also found there was "not a scintilla of evidence in the record that in 1946 or thereafter Respondent Crawford granted Respondent Teamsters an across-the-board delegation with power to dominate absolutely the matter of seniority, without any standards and in all circumstances." He therefore concluded that the case did not fall within the doctrine, enunciated in Pacific Intermountain Express, 107 N.L.R.B. 837 (1954) that a grant by an employer to a union of the power to settle any controversy over seniority standing violated the Act because it tended to encourage union membership. The examiner found the contract provisions requiring union membership in violation of § 8(a)(1) and (3) and 8(b)(1)(A) and (2) of the Act since they did not explicitly provide for the 30-day waiting period specified in § 8(a)(3) and the purported saving clauses in § 5 of the contract did not cure the illegality, citing on the latter point our decision in Red Star Express Lines, Inc. v. NLRB, 196 F.2d 78 (2d Cir. 1952). He recommended an order prohibiting Crawford and the Local from renewing, enforcing, or implementing the clauses of any agreement requiring employees to maintain union membership as a condition of employment except in conformity with the Act, and the posting of notices to that effect.
The General Counsel filed exceptions relating to the examiner's failure to find an unfair labor practice in Cross' discharge and the alleged arrangement giving the Union control of seniority ranking; he took no exception to the examiner's failure to recommend a more drastic remedy with respect to the contract clauses. Crawford and the Local filed no exceptions. The General Counsel submitted a brief in support of his exceptions. Crawford and the Local filed briefs in reply thereto and in support of the examiner's report. There was no oral argument.
The Board, although disagreeing with certain of the examiner's findings as to seniority lists, upheld his conclusion that Crawford and the Local had not violated § 8 of the Act in the discharge of Cross, holding that the General Counsel had failed to sustain his burden of proving an unlawful agreement giving the Local control over the seniority of Crawford's employees. The Board also approved the examiner's conclusion as to the illegality of the quoted provisions of the collective bargaining agreement. For this it added a new and more drastic remedy, thereby creating the primary issue on these petitions for review. Stating that "The record shows that by the unlawful provisions of the contract involved herein, the Respondents have unlawfully encouraged employees to join the Respondent Union in order to obtain or maintain employment, thereby inevitably coercing them into the payment of initiation fees, union dues and other sums," the Board said that "In order adequately to remedy the unfair labor practices found, the Respondents should be required to reimburse employees of the Company for any initiation fees or dues, and other moneys, which have been unlawfully exacted from them as the price of their employment." It ordered Crawford and the Local "jointly and severally, to refund to the drivers and drivers' helpers of the Respondent Company all initiation fees, dues and other monies paid by them to the Union as the price of their employment" for a period beginning six months prior to the date of the filing and service of Cross' charge.
In Morrison-Knudsen Co. v. NLRB, decided March 2, 1960, we struck out a provision in an order requiring similar reimbursement by an employer, as the Third Circuit has recently done in NLRB v. American Dredging Co ., 28 U.S.L. Week 2348 (Jan. 8, 1960). The principles there stated require us here to strike out the reimbursement provision not only as to the employer but also as to the union.
We assume that, as held in Red Star Express Lines v. NLRB, 196 F.2d 78 (1952), NLRB v. Gaynor News Co ., 197 F.2d 719 (1952), affd. sub nom., Radio Officers' Union v. NLRB, 347 U.S. 17 (1954), and NLRB v. Gottfried Baking Co ., 210 F.2d 772 (1954), and despite Lewis v. Quality Coal Co ., 270 F.2d 140 (7th Cir. 1959), cert. denied, 4 L. Ed. 2d 353 (1960) omission of the 30-day waiting period clause required by § 8 (a)(3) was not cured by the provision making union membership a condition to hiring or retention only "in the event that this is not in conflict with the law" and that this alone sufficed to justify an order requiring rectification. We recognize also that requiring reimbursement by the union is less oppressive than demanding it of the employer, since the union has at least received the dues - although it has also rendered the services for which the dues were paid. However, there is not a syllable of evidence that in this case the omission of the 30-day clause in fact had any coercive effect. Cross and the two drivers senior to him had been in Crawford's employ for ten years before the Union was designated as bargaining representative in 1946, the record is silent as to when or under what circumstances the three helpers joined, and there is no suggestion that anyone would have acted one whit differently if the 1956 agreement had contained the prescribed 30-day clause. The Board's statement that "The record shows that by the unlawful provisions of the contract involved herein, the Respondents have unlawfully encouraged employees to join the Respondent Union in order to obtain or maintain employment, thereby inevitably coercing them into the payment of initiation fees, union dues and other sums" is factually unsupported unless read in a highly legalistic way ...