February 6, 1957
NATIONAL LABOR RELATIONS BOARD, PETITIONER,
LOCAL 369, INTERNATIONAL HOD CARRIERS' BUILDING AND COMMON LABORERS' UNION OF AMERICA, AFL. RESPONDENT.
Per Curiam: The National Labor Relations Board has petitioned for rehearing because of our denial of enforcement as to that part of the Board's order which related to Section 8(b)(1)(A) of the National Labor Relations Act, as amended. In so doing we said:
"In the Board's opinion and in the presentation to this Court this case has been postured as involving an 8(b)(2) violation. While we agree that the Union has violated Section 8(b)(2) of the Act, we do not consider the applicability of Section 8(b)(1)(A) to this situation."
Our action was premised on the fact that the Board's findings only spelled out the existence of a discriminatory hiring agreement between the respondent Union and the employer which resulted in a denial of employment to one Carr, conduct proscribed by Section 8(b)(2). The Board was apparently of the view that, without more, that constituted the basis for the sweeping injunction of paragraph 1(c) of the order, which required the Union to cease and desist from:
"In any like or other manner, restraining or coercing employees of, or applicants for employment with, the said Company in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring menbership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act."
In National Labor Relations Board v. Express Publishing Company, 312 U.S. 426 (1941), the permissive scope of a National Labor Relations Board order was considered by the Supreme Court. There the Board had found that the employer had committed an unfair labor practice under Section 8(a)(5) by refusing to bargain. In addition to ordering the employer to cease and desist from refusing to bargain, the Board, treating the employer's refusal to bargain as a violation of Section 8(a)(1), further ordered the employer to cease and desist from:
"In any manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid and protection, as guaranteed in Section 7 of the Act."
Enforcement of the latter part of the order was denied by the Supreme Court.
The Express Publishing Company case sustains the conclusion reached in this case, and our reasons for such conclusion need not be set forth at great length.While the Union's conduct found by the Board to be an 8(b)(2) violation is also a "technical violation" of Section 8(b)(1)(A), there is no justification for an order restraining the Union from committing other acts unrelated to the one found. To the extent that future conduct of the Union falls within one of the prohibited areas of Section 8(b) the Board's proposed order may subject the Union to a contempt order if the conduct is also of the type prohibited by Section 8(b)(1)(A). In the Express Publishing Company case an order of this nature was denied enforcement where the resemblance between the unlawful act committed and other prospective violations was lacking. The violation here was not one involving general unlawful conduct and the order need go no further than to restrain the Union from causing or attempting to cause the Company to discriminate against an employee in violation of Section 8(a)(3) through the requirement of Union clearance or in any other manner causing or attempting to cause the prohibited result. "So far as respondent's past conduct may be thought to have had any effect on the rights guaranteed by Section 7, such consequences would be effectively prevented by the prohibition of such an order without drawing it so broadly as to forbid all other unrelated unfair labor practices." National Labor Relations Board v. Express Publishing Company, supra, at page 438; cf. National Labor Relations Board v. Jarka Corp. of Philadelphia, 198 F.2d 618, 621 (3rd Cir. 1952).
For the reasons stated the petition for rehearing will be denied.
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