Lumbard, Ch. J. Hays, C. J. dissenting.
The National Labor Relations Board seeks enforcement of its order finding the union and employer respondents guilty of unfair labor practices in compelling certain employees of the SuCrest Corporation and the Pepsi-Cola Company,*fn1 who were members of Local 1476, I.L.A., to pay dues to the Sugar Workers Council of North America, International Longshoremen's Association (I.L.A.), AFL-CIO. The Board held that the Council was not the bargaining representative under Section 9(a) of the National Labor Relations Act, of the members of Local 1476 and that therefore the Council and the employers were not entitled under Section 8(a)(3) of the Act to require membership in the Council as a condition of employment. The order we are asked to enforce requires the reimbursement of the dues illegally collected and requires all respondents to cease and desist from further interfering with the exercise by the employees of their rights guaranteed under Section 7 of the Act.
We grant enforcement. The involvement of the Sugar Workers Council in the negotiation of the two most recent contracts covering the affected employees was not sufficient to render the Council the § 9(a) representative of these employees, especially in light of the fact that the members of Local 1476 had twice voted not to affiliate with the Council.
All parties have stipulated to the facts. Local 1476 and Local 976-4 of the I.L.A. for many years have represented the employees at the plants of SuCrest and Pepsi located in New York City. Local 1476 represents the production and maintenance workers and Local 976-4 represents the warehouse workers. Both Locals, together with the International union, have negotiated a series of contracts with both employers. The contracts in effect at the time the alleged unfair labor practices took place were negotiated on January 16, 1963 with Pepsi and in March 1964 with SuCrest, the latter contract being effective from October 1, 1963.
The formation of the Sugar Workers Council of North America, I.L.A., AFL-CIO, was authorized by the International union in 1957. In August 1963, pursuant to the authority bestowed on it by a 1963 amendment to the International's Constitution, the I.L.A. Executive Council adopted a proposal formally incorporating the Council into the I.L.A. structure and requiring all Local Unions representing employees in the sugar industry to affiliate with the Council. The Council's functions, as enumerated in its constitution, include broad supervisory power to "secure uniformity of purposes and objects" among the affiliated Local Unions. The Locals must gain advance approval from the Council with respect to every item they propose to present to management in contract negotiations, and the Council is to be a party to all collective bargaining agreements negotiated by the Locals. No strike may be called without the Council's authorization.
Local 1476 never acted to affiliate with the Sugar Council despite the requirement to this effect in the I.L.A. constitution. At two membership meetings the members of the Local specifically voted not to affiliate with the Council.
Under the Council's constitution the members of each affiliated Local are required to pay monthly dues to the Council. During the relevant times the dues rate was set at two dollars per month. The employees of SuCrest and Pepsi had available wage assignment forms authorizing the checkoff of the dues directly to the Council. The forms were executed by all but 46 SuCrest employees and 31 Pepsi employees, all of these employees being members of Local 1476.
In April, 1965 James Borrazas, an elected business agent of Local 1476 and the Secretary-Treasurer of the Sugar Council, wrote similar letters to SuCrest and Pepsi listing the names of their respective employees who had refused to pay dues to the Council. The letters requested that the employers discharge these employees "in accordance with the Union Shop Provision of the contract." SuCrest at first refused to comply with this request but, after a conversation with Borrazas, the company agreed to talk with the employees. These employees indicated that they would pay the dues after being told of the possibility of discharge. SuCrest then posted a notice on its bulletin board which contained a schedule of the dates on which each employee would have to pay his dues or be discharged in consequence of his failure to do so. All of the delinquent SuCrest and Pepsi members of Local 1476 did pay such dues to the Sugar Council within the required times.
As a result of prior litigation in this court, King v. Randazzo, 346 F.2d 307 (2d Cir. 1965), it is settled that the Sugar Council assessments, because they were specifically authorized by a special convention of the Council, did not violate § 101(a)(3) of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 411(a)(3). This determination, resting solely and explicitly on an application of the terms of § 101(a)(3),*fn2 in no way forecloses a finding that the successful attempt to collect the dues by threatening to discharge delinquents violated § 8(a)(3) and § 8(b)(2) of the NLRA. These provisions have a scope independent of § 101 (a)(3), and in the current context provide added protection for individual workers against the coercive potential of joint action by management and labor.
Section 8(a)(3) of the NLRA, as an exception to its general prohibition against employment discrimination which encourages or discourages union membership, authorizes contracts requiring membership in a labor organization as a condition of employment. But such a labor organization must be the "representative of the employees as provided in section 9(a) . . . ." Section 8(b)(2) prohibits labor organizations from causing an employer to violate § 8(a)(3). Section 9(a) provides in relevant part:
"Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining . . . ."
Thus the question before us is whether a majority of the members of Local 1476 working at the Pepsi or SuCrest plants had "designated or selected" the Sugar Council to be their collective bargaining representative prior to the coerced collection of dues. If the Council had not achieved § 9(a) status then any attempt by the employer and the Council to require membership in the Council as a condition of employment was not within the exception provided by § 8 (a)(3), and therefore violated § 8(a)(3) and § 8(b)(2).
Since the members of Local 1476 voted on two occasions not to affiliate with the Council, if the Council did achieve § 9(a) status it could only have been by a manner more indirect than explicit designation by the Local's membership. The Council relies on its participation in the contract negotiations with SuCrest and Pepsi, its alleged role as a party to the SuCrest contract, and its relationship to the Local as defined in the constitutions of the I.L.A. and the Council. We find that substantial evidence on the record considered as a whole supports the Board's conclusion, informed by its special experience in determining the identity of bargaining representatives, see NLRB v. E.A. Laboratories, Inc., 188 ...