Before LUMBARD, Chief Judge, HAYS, Circuit Judge and DIMOCK, District Judge.
HAYS, C.J.: The National Labor Relations Board petitions for enforcement of an order based upon a finding that respondent engaged in unfair labor practices in violation of Section 8(b)(1)(A) and Section 8(b)(2) of the National Labor Relations Act (29 U.S.C. § 158(b)(1)(A) and (b)(2)). We deny enforcement on the ground that the activities in which the respondent engaged were not unfair labor practices within the meaning of the Act.
We accept the Board's findings of fact with one minor exception which we will indicate later.*fn1
The findings present the following situation:
George Monty was employed from time to time as an "extra" driver by the Valetta Motor Trucking Co., Inc., a company engaged in general trucking between terminals in Vestal, New York and Boston, Massachusetts. Monty worked at the company's terminal in Albany, New York, which is a transfer point on its Vestal-Boston route.
Monty began to work for the company in December, 1959, taking out "extra" runs when the number of runs was greater than could be handled by the regular drivers or when one of the regular drivers did not report for work. The company had four regular drivers and two extra drivers besides Monty. All of the drivers, regular and extra, were members of respondent union which had a collective agreement with the company covering the work of the drivers.
From the time of his original employment in December, 1959 until some time in the fall of 1960 Monty had "priority" on the extra runs, i.e . he was assigned to the first run for which an extra driver was needed. If further help was required one or both of the other two extra drivers was then called upon.
In the fall of 1960 the two extra drivers other than Monty began to be assigned to runs ahead of Monty and Monty's work dropped from an average of approximately one and one half trips a week to little more than one a week in November and less than one a week in December. In January 1961 Monty stopped reporting for work with the company.
When Monty's work began to fall off he complained to the company and was assured that he was to have priority. Instructions to that effect were given to the dispatcher (who was also one of the regular drivers and the union steward). Monty also complained to his union steward who accompanied him to the union hall where he presented his complaint to a committee composed of union officials and members. At this meeting the business agent of the union said to the union steward who was presenting Monty's case, "We tried to keep this job open where a man out of work can pick up a few days' work now and then."
Nothing came of Monty's complaint to the union and he again complained to the company. The dispatcher was informed that if Monty was not given preference the Albany stop would be canceled, and the company did run several trucks straight through from Vestal to Boston without stopping at Albany to change drivers. When the union lodged a complaint against this practice the subject of Monty's priority again came up and union officials argued that Monty was a "trouble maker" and "no good", and that there were plenty of other reliable men whom the company could employ.
On the basis of this evidence the Board concluded that the union violated Section 8(b)(2) of the Act by causing the company to discriminate against Monty in violation of Section 8(a)(3).
The Board's order requires respondent to cease and desist from causing or attempting to cause the company to discriminate against Monty and to make Monty whole for any loss of pay he has suffered by reason of discrimination. The order also requires respondent to notify the company that it withdraws its objection to Monty's being given priority in employment and to post appropriate notices in its office.
We hold that this evidence fails to establish any violation of Sections 8(b)(1)(A) or 8(b)(2) of the Act.
The union does not commit an unfair labor practice merely because it causes or attempts to cause an employer to promote or demote an employee or to discriminate for or against him. In Ford Motor Co. v. Huffman, 345 U.S. 330 (1953), discrimination in seniority which was adopted at the behest of the union was found unexceptionable.*fn2 In Aeronautical Industrial District Lodge 727 v. Campbell, 337 U.S. 521 (1949), the Court gave its approval to super-seniority for union officials which was, of course, a practice proposed by the union. Teamsters Local 357 v. NLRB, 365 U.S. 667 (1961), held that it was not an unfair labor practice for a union to cause the discharge of an employee because ...