HEALY, Circuit Judge.
The National Labor Relations Board petitions for enforcement of its order issued against Alaska Steamship Company (hereafter the Company) and American Radio Association, CIO (hereafter the Union).
The order proceeds on findings that the Company violated § 8(a) (3) and (1) of the Act by discriminatorily denying employment to one Horace Underwood, and that the Union violated § 8(b) (1) (A) and (2) by causing the Company to do so. The Company is a member of the Pacific Maritime Association and was a member of its predecessor, Pacific American Shipowners Association, referred to in the record as PASA. In December of 1948 PASA and the Union executed a bargaining agreement under which members of the PASA (including, of course, the Company) agreed among other things that the offices of the Union should be the central clearing bureaus through which all arrangements in connection with the employment of radio officers should be made, and that when filling vacancies preference of employment was to be given to members of the Union.
Upon the making of this contract the Union adopted rules and procedure for carrying it into effect with respect to the assignment of radio officers to job vacancies. In summary, the Union maintained an assignment list which was open to Union members only. To obtain a
In March 1949 Underwood, who is a qualified radio officer, joined the Union and was placed on the latter's assignment list as an active member for the Port of Seattle, from which the Company operated its ships. Thereafter he accepted referrals to the Company and was employed on several of its vessels until late in November 1949, at which time he again registered as unemployed and was placed on the Union's list.
Underwood was dissatisfied with the system of rotary hiring, feeling that it prevented a radio officer from obtaining permanent employment and acquiring seniority status with one employer; and he was interested only in employment with the Company. Therefore on December 28, 1949, he resigned from the Union, and the latter accordingly removed his name from its list.
On the basis of the foregoing the Board found that the provisions of the 1948 agreement, granting preference in hiring to members of the Union, were illegal inasmuch as they ran counter to the limited union-security conditions permitted by § 8(a) (3) of the Act.
The Union's removal of Underwood's name from the assignment list was entirely in keeping with its shipping rules, which, as seen, provided for the listing of members only. The Board's determination that his name was dropped on that consideration alone is substantially supported by the evidence. And its further conclusion that the Company knew Underwood had resigned and knew that his name had been removed from the list because of his ceasing to be a Union member is likewise supported, notwithstanding the Company heatedly contends the contrary.
By May 5, 1950, at any rate, both the Union and the Company were on notice that the 1948 agreement was illegal. See note 3 above. The Company attempts to absolve itself of responsibility by stressing its earlier request that the Union waive the illegal union-preference feature as regards Underwood. Considering all the circumstances the request would seem to have amounted to little more than the expression of a pious hope. The Union, as might have been anticipated, ignored the request and adhered to the agreement. We think with the Board that the Company, having entered into and maintained the illegal preference contract, is in no position to assert that in a particular case it did not know that the discriminatory purpose was being carried out.
One feature of the remedy recommended by the trial examiner and approved by the Board should be noticed, namely the requirement of lost pay to Underwood, imposed by the order jointly on the Union and the Company.
The Board has not discussed this subject here, either in brief or oral argument. Naturally no determination of the amount of lost pay flowing from the discriminatory treatment of Underwood has yet been made. Our purpse here is to
Our decree enforcing the Board's order will be subject to the condition that after the award of back pay has been made exceptions to it on the grounds indicated will be entertained by the court.
Subject to this condition a decree will be entered enforcing the order.
The 1948 agreement remained in effect until July 1950, when it was replaced by a new agreement between Pacific Maritime Association, PASA's successor, and the Union, which, although retaining the hiring-hall provision, omitted the preferential hiring clause and provided that the Union would not discriminate against nonmembers in job referrals. The 1950 agreement is not, of course, involved here, the allegedly unfair labor practices having occurred under the 1948 agreement.