AUGUSTUS N. HAND, Circuit Judge.
In the proceeding brought by the Red Star Express Lines of Auburn, Inc. (hereinafter called the Company) it petitioned this court to review and set aside so much of an order of the National Labor Relations Board as required the Company to replace its employee Richard Mullen in his former position of employment and to make him whole for any loss of pay he might have suffered. The Board held that Mullen had been discharged by the Company in violation of Section 8(a)(3) of the Taft-Hartley Law, 29 U.S.C.A. § 158(a) (3), because of his activities in opposition to the union
Likewise, the finding of the Board that Mullen was an ordinary employee and not a supervisory employee within the meaning of Section 2(11) of the Act, 29 U.S.C.A. § 152(11), is amply supported by the record. The testimony disclosed that he had no authority to hire or fire other employees; that all managerial decisions
The second proceeding is a petition by the Board for enforcement of its order
The Association is an organization of about sixty-eight motor carriers in Western and Central New York. One of its functions is the negotiation of uniform collective bargaining agreements with labor unions on behalf of its members. Since 1944 the Association and the Teamsters Council have maintained a master collective bargaining agreement covering the employees of the Association's members, and the Company, which was a member of the Association, and Local 182 have had a similar agreement between themselves.
It is urged that the addendum was sufficient to suspend the operation of the union-security provisions of the contract
The petition of the Board for the enforcement of its order is granted.
L. HAND, Circuit Judge (dissenting).
The letter of August 2, 1948 may be paraphrased as follows without violence to its meaning: "Until the courts decide what the Labor Management Relations Act means as to any clause in our contract of 1944 which is `affected' by that act we agree to treat such a clause, as though it was not in the contract." That, I submit, meant that until the courts decided otherwise, the "closed shop" clause was to be deemed not in the contract; for there is no dispute, I take it, that the "closed shop" clause in the contract was "affected" by the act. Maybe my brothers think otherwise; but in any event, I understand them to say, that even though, as a matter of contract, the addendum did eliminate the "closed shop" clause, its effect, when coupled with the original contract, was so equivocal that an employee would not know whether or not the parties had agreed to a "closed shop," and that this uncertainty made the contract an unfair labor practice, since it enabled both the employer and the union to discriminate against a nonunion man under § 8(a)(3) and tended to force him to join the union under § 8(b)(4)(A). I should altogether agree, if the union and the employer had suppressed the addendum in order to deceive employees into believing that the parties were still working under a "closed shop" agreement; but I cannot agree, if, although they drew their contracts in an
The Board found that "the parties deliberately used the vague language of the addendum to eliminate disagreement among themselves as to which clauses were affected." That is true, but it gives no color for supposing that they were combining to bemuse any employees, present or future. The Board next found that the addendum was not intended to remove the "coercive effect of the unlawful union-security provision" because the parties did not "notify the employees of the existence of the addendum"; and because "the union hiring hall and union-determined seniority * * * continued to be followed by the parties." It is true that the addendum was not sent out to the employees, and it is of course possible that this was done because the parties wished to suppress it, and to give the employees to understand that the "closed shop" was still in force; but I can find no substantial evidence to support that finding. DePerno, the president of Local 182, swore that after the agreement was made he went back to Utica and "immediately turned the settlement over to the girls in the office to mimeograph and push out to all the locals in the state." Shortly thereafter the president of the employers association called him up and asked him: "What about the Taft-Hartley law that we agreed that you were going to put in there?" DePerno's testimony continued that that was "the first time I realized that it wasn't in there even though we had agreed and what causes (caused) the error was the fact that we had the mediator's decision or the settlement which I turned over to the girl and didn't give her the other sheet of paper that we settled amongst ourselves as regards the law." In reply to Durkin's inquiry he asked whether, having sent out the notices, he had "got to get them all back and destroy them and throw them away, or what?" They finally agreed DePerno should send Durkin a letter which Durkin should sign and send back, because "all decisions come through both Councils." I can find no contradiction of this anywhere in the record, and in the absence of any indication that the trial examiner discredited DePerno, it seems to me that we should accept his testimony. That would seem to follow from the decision in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. If so, there is no support whatever in the evidence for the conclusion that the failure to notify the employees was owing to a desire to make them suppose that the parties were still working under a "closed shop."
The Board's second finding is that there was evidence that in fact the parties continued the "closed shop." This my brothers do not expressly affirm and as I understand, they do not accept it. At any rate, it appears to me not to be "supported by substantial evidence on the record considered as a whole." Weaver, the association's manager, and DePerno both swore that the parties had not followed the "closed shop" thereafter, and the only contrary evidence was that of Mullen, the employee, upon whose charge the proceeding was started. It is true that he was not discharged until March, 1949, and it would therefore be possible to read his testimony as covering a period after August, 1948. The substance of what he said was as follows: "Q. Well, who would determine how many dock men were needed at night? A. Well, Hassett would call the hall before five o'clock? * * * Well, if he needed help he would call the union hall and they would come to work. * * * Q. In other words the company hired the extra men from the union hall? A. Yes, * * * Q. So if there was need for extras after five o'clock you wouldn't have hired him (sic) because the union hall was closed, is that right? A. That is right."
The examiner did not, it is true, credit Weaver upon another issue; but it does not follow that he did not believe him on this point and at least he gave no indication that he discredited DePerno's testimony that after the addendum was signed Local 182 made no "attempt to enforce the union security" ("closed shop") "provisions of the contract." In the face of these denials