argued as amended april 7 1976.: January 8, 1976.
ON APPLICATION FOR THE ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD Case Nos. 4-CB-1900 4-CC-653 4-CB-1901.
Van Dusen, Adams and Weis, Circuit Judges. Adams, Circuit Judge.
Because the means selected were not tailored to the statutory pattern, the National Labor Relations Board cut off the efforts of a trade union to eliminate what it termed the "double-breasted operation" of a contractor. The Board directed the local union to bargain with a subcontractor without insisting on certain contractual clauses designed to limit the sources from which the employer could obtain construction equipment. An alternate approach, the Local's endeavor to enlarge its representation at the expense of a rival union through improper bargaining with the employer, was also prohibited. We will enforce the Board's order.
York County Bridge, Inc. is a subcontracting firm engaged principally in pile driving and bridge construction and is a wholly-owned subsidiary of G.A. and F. C. Wagman, Inc. Wagman is also in the construction business. For many years its employees have been represented by District 50, Allied Technical and Construction Workers which later merged with the United Steelworkers.
Wagman was unable to secure subcontracts where the general contractor was required under its collective bargaining agreement to sublet only to employers whose workmen were represented by an AFL-CIO building trade union. To meet this situation, in 1960 Wagman incorporated the York Company which adopted the policy of securing labor through building trade union hiring halls.
In 1967, York joined the Contractors Association of Eastern Pennsylvania (CAEP), a multi-employer group, and thereby became a party to a collective bargaining agreement with Local 542 of the International Union of Operating Engineers.*fn1 When that contract expired in 1971, Local 542 advised CAEP that York and several other contractors would be "carved out" of bargaining for a new agreement because they were "dual companies."*fn2
The union considered the "dual companies," such as York-Wagman, a threat to job opportunities for Local 542 members and submitted contractual provisions to CAEP which were designed to resolve the problem. The union proposals were designated as Section 11 of a new contract:
"Section 11 - Non-Union Equipment:
(a) No operator shall be required to operate equipment belonging to a contractor or supplier with whom this Local Union is not in signed relations, provided, Union equipment is available in the locality. No party to this agreement shall rent or supply equipment unmanned to anyone doing construction work covered by this agreement who is not in signed relations with this Union.
(b) No employee represented by this Union on construction work shall be required to operate equipment of or for any Employer who has any interest in a firm or company doing construction work within the jurisdiction of this Union and which is not in signed relations with this Union."
When no agreement had been reached by May 1, 1971, the union went on strike and its members did not return to work until July 13, 1971. On the next day, representatives of the "carved out" employers, including York, who were still struck, met with the union negotiators. The Local advised that not only would the "carved out" employers have to sign the standard contract but, in addition, they would be required to discuss some additional problems. York was told that it would have to end its dual operation within a period of time to be negotiated, and until agreement was reached, Local 542 would not furnish workers.*fn3
During September and October of 1971, York stated that it would sign the standard contract but refused to bring Wagman "under the map of the agreement." Upon the union's refusal to accept this condition, a complaint was filed before the N.L.R.B. in which York alleged that it was being coerced to enter into a contract prohibited by Section 8(e) of the National Labor Relations Act, 29 U.S.C. § 158(e).
The administrative law judge found that the union's object was to compel York-Wagman to employ only Local 542 members, a result which he did not believe was in violation of the Act, and dismissed the complaint. The Board reversed, finding that the union's object was to force York's agreement to Section 11 of the standard contract, a provision which was prohibited by Section 8(e). Moreover, the Board held that the union had failed to bargain as required by the Act. One member of the three-man panel dissented.
The Board ordered the union to bargain with York and to desist from requiring the employer to enter into a prohibited agreement or insisting that the agreement cover the Wagman employees currently represented by another labor organization. We are asked to enforce the order.
The union asserts, inter alia, that the case is moot because the standard contract which incorporated Section 11 expired on April 30, 1973 and the succeeding agreements did not contain that language. The union had indicated its willingness to re-negotiate the controversial section so that it would be in compliance with Section 8(e). With the "allegedly objectionable" language no longer ...