Before LUMBARD, Chief Judge, WATERMAN and FRIENDLY, Circuit Judges.
The National Labor Relations Board petitions for enforcement of its order, 123 N.L.R.B. 1393 (1959) based on findings that Local 138, International Union of Operating Engineers, AFL-CIO, violated §§ 8(b)(1)(A) and 8(b)(2) of the Taft-Hartley Act, 29 U.S.C.§§ 158 (b)(1)(A) and 158(b)(2), and that various employers violated §§ 8(a)(1) and 8(a)(3), 29 U.S.C. §§ 158(a)(1) and 158(a)(3), by maintaining a closed shop and an illegal union hiring hall, and by discriminating against certain men so as to discourage activities protected by § 7, 29 U.S.C. § 157.
The case grew out of a long-standing feud between rival factions of the Union, an organization of operators of heavy construction equipment - bulldozers, cranes, power shovels and the like - in Nassau and Suffolk Counties on Long Island. Since about 1954 a small number of determined members, perhaps ten of a total membership of some twelve hundred, whom we shall call, without implication, "reformers," have waged an intensive campaign to overturn Local President William DeKoning, Jr., and other incumbent officers, for what the reformers consider to be gross mismanagement and improper administration of union affairs. They have picketed the headquarters of the Local and of its International in Washington, D.C.; they have appeared before the Ethical Practices Committee of the AFL-CIO; they have printed articles in the press and have spoken over the radio. Their activities have engendered a considerable amount of irritation among the rank and file, culminating in the trial of several reformers on charges of bringing the Union into disrepute, and their expulsion from the Union in September, 1956. Moreover, on several occasions other members have refused to work with the reformers, and the latter claim that their reforming efforts have provoked a systematic program of discrimination against them by the Local itself, intended to deny them equal employment opportunities.
Since 1944 the Union has been party to a collective-bargaining agreement with Nassau and Suffolk Contractors' Association, Inc., which represents some 28 employers in the construction industry. Respondents Hendrickson Bros., Inc., and Frank Marmorale Co. are members of the Association; respondents Eastern Fireproofing Co. and Zara Contracting Co. are not. The agreement was to continue in force for three years, and thereafter for yearly periods unless timely notice of a contrary intention was given. It required the member companies to employ members in good standing of the Union, unless the Union was unable to supply the requested labor within twenty-four hours. In December, 1955, the Board, on charges by reform member Peter Batalias, filed a complaint against the Union and the Association. This resulted in a cease-and-desist order dated June 18, 1957, 118 N.L.R.B. 174, and ultimately in a consent decree in this Court, dated May 12, 1958, condemning the closed-shop clause and any arrangement whereby Union membership or Union clearance was a prerequisite to employment, restraining the Association and its members from interfering in the administration of the Union, and barring the Union and the Association from "in any other manner" interfering with the exercise of rights guaranteed by § 7. The complaint in the present proceeding, also based on charges brought by members of the reform group, is predicated on the alleged continuation of the forbidden practices, with the exception of employer domination, beyond the date the Trial Examiner's report was filed in the earlier case, on discrimination against the reformers in job referrals, and on allegedly Union-inspired work stoppages resulting in the discharge or transfer of reform members.A final charge, added during the trial, was of discrimination against non-Union workers in the administration of the Union welfare fund.
The Trial Examiner found the respondents had continued the illegal closed-shop provision but recommended that no new order be entered because the situation was covered by the earlier decree. He found neither discrimination in job referrals nor Union responsibility for the work stoppages. Respondent Zara, which has no contract with the Union, was absolved of any wrongdoing. Respondent Eastern, also with no contract, was found to have committed a "technical violation" by yielding to pressure from the Union to remove reformer Miller from his job, but no order was recommended because the Examiner did not believe such action "would effectuate the policies of the Act." As to respondents Hendrickson and Marmorale, the Examiner concluded that, apart from the illegal contract to which they were bound as Association members but as to which no order was recommended, the General Counsel had failed to sustain his burden of proof.
On exceptions by the General Counsel, the Board drastically modified the Examiner's findings and conclusions. Noting that the Union had not excepted to the finding that it had continued the illegal closed-shop provision, the Board affirmed this without discussing the evidence. Next the Board affirmed, on the basis of a notification by President DeKoning to the members, the Examiner's finding that a practice had continued whereby Union membership, Union referral, or a Union permit was required as a condition of employment, and ruled that the Union operated an exclusive hiring hall that did not satisfy the standards laid down in Mountain Pacific Chapter, 119 N.L.R.B. 883, 897 (1957). Findings were also made that the Union had violated § 8(b)(1)(A) by threatening the reformers with the loss of job referrals for their antiorganization activities, by denying them a fair share of job referrals for the same reason, and by threatening reformer Wilkens with bodily injury; and had violated both § 8(b)(1)(A) and § 8(b)(2) by causing the latter's discharge and, through work stoppages, the discharge and transfer of reformers on several other occasions.Respondents Eastern, Hendrickson, Marmorale and Zara were found to have discriminated against the reformers by yielding to the Union's demands, in violation of §§ 8(a)(1) and 8(a)(3). Finally, the Union was held to have violated the Act by discriminating against permit men in the administration of the welfare fund. The Union was ordered, among other things, to cease and desist from the unfair practices found, to reimburse dues and fees exacted under the illegal contract, to make whole the reformers for any loss of pay suffered by reason of discrimination, and to end discrimination in the welfare fund. The respondent companies were similarly ordered to cease and desist, to join in the reimbursement of dues and repayment of losses, and to offer reinstatement to employees wrongfully discharged.
When the case was argued before us, Local 60, United Bhd. of Carpenters v. NLRB, 365 U.S. 651 (1961), and Local 357, IBT v. NLRB, 365 U.S. 667 (1961), were awaiting decision. In the light of those decisions, the Board has withdrawn its request for enforcement of the portions of the order imposing the so-called Brown-Olds remedy of reimbursement of dues exacted during the allegedly illegal contract and condemning the exclusive union hiring hall. We have considered whether the Board's order rested upon the Mountain Pacific doctrine to such an extent that we ought remand for further consideration in the light of the Local 357 decision which condemned it, as we did in NLRB v. Lundy Manufacturing Corp ., 286 F.2d 424 (2 Cir. 1960), where another Supreme Court reversal of the Board had supervened; we have concluded that most of the order is sufficiently supported by proper findings not affected by Local 357 to warrant enforcement without such a remand. See Communist Party v. Subversive Activities Control Board, 367 U.S. 1 (1961).
(1) Formal contract provision .
As stated above, Article IV of the 1944 collective-bargaining agreement provided that members of the Association should employ "only such workmen as they may designate and prefer, providing such workmen are members in good standing of the Union * * *," except when the Union proved unable to furnish men on twentyfour hours' notice. It is not denied that, as was held in the earlier proceeding, the application of such a provision would be a violation by the companies of § 8(a)(3) and by the Union of § 8(b)(2). The instant issue is whether in fact this provision was continued after the earlier case was decided.
The Trial Examiner found it was. The Board argues we cannot review this finding, as the Board did not, because no exception to it was taken by the Union. We disagree. Section 10(e) of the Act, 29 U.S.C. § 160(e), is not applicable; the objection was urged in the Board proceedings. Neither is § 102.46(b) of the Board's Rules, providing that "no matter not included in a statement of exceptions may thereafter be urged before the Board, or in any further proceeding," unless this is read with a literalness we think unwarranted. In all save form the Union was the prevailing party before the Examiner; there was no occasion for it to except to adverse findings which did not affect his favorable recommendation. We do not construe the Board's rule as requiring a party satisfied with an examiner's recommendations to except to erroneous findings made in the course of discussion but not affecting the result; the ordinary principle is that "A party may not appeal from a judgment or decree in his favor for the purpose of obtaining a review of findings he deems erroneous which are not necessary to support the decree." Electrical Fittings Corp. v. Thomas & Betts Co ., 307 U.S. 241, 242 (1939). If the Board intends something different, it must say so more clearly than it has.
The Examiner's finding that the written collective-bargaining agreement was continued unchanged ignores the uncontradicted testimony of Union Secretary Sofield that the offending clauses were removed in the summer of 1956.*fn1 Although a finding based solely on the trier's disbelief of uncontradicted evidence is not necessarily invalid, here the Trial Examiner seems to have been unaware of Sofield's testimony; at least it was not mentioned in his report. The Union has moved that this issue be remanded for the Board to reconsider on the basis of certain documents which demonstrate beyond question that the contract was amended by exchange of letters during the summer of 1956, so as to substitute for the offending language a lawful union-security clause; in view of the uncontradicted nature of Sofield's testimony, the failure of the Union to produce these documents at an earlier stage of the proceedings is excusable. However, remand is unnecessary, since the finding that the illegal closed shop clause was not removed is without support in the record taken as a whole. The finding is set aside, and the motion to remand is denied.
(2) Informal arrangements .
On the other hand, a merely ceremonial expurgation of the offensive words from the written agreement would not avail, if in fact the practice embodied in the illegal provision was continued under the table. The Trial Examiner found that the General Counsel had not sustained his burden of proving the closed shop continued to be enforced, but the Board held otherwise, largely on the basis of President DeKoning's statement at the Union meeting in September, 1956, that the Union would continue to operate as before, despite the filing, a few days earlier, of the Intermediate Report in the prior proceeding recommending issuance of an order against it. The minutes of that meeting, transcribed by a court stenographer, reveal that DeKoning's concern was with the Examiner's recommendation that the Union be wholly disestablished for employer domination; DeKoning did not mention the finding as to the illegal closed shop clause. The Board also relies on a letter from DeKoning to the Union membership on September 21, 1956, a few days after the Intermediate Report, stating that "until the N.L.R.B. has reviewed this case and has issued a final order, we shall continue to work under our contract with all general contractors * * *" This proves nothing; "our contract" was the contract as it had been amended to omit the illegal closed shop provision. Most of the remaining evidence offered to support the finding relates to the prevalent, though not universal, custom in the industry of obtaining union clearance before hiring an engineer; at most, such evidence proves the existence of an exclusive union hiring hall. The sole evidence of continuing existence of the closed shop practice that is in any way persuasive is the testimony of Schurman, timekeeper for Eastern, which we recount below. While, as we later hold, this ...