*1 Rehearing. loan We need not On Petition for consider the Gould dis- in this connection. trial court HEALY, ORR, Before BONE and Cir- recovery rea- allowed thereon for other Judges. cuit appellee sons. As to the loan Owens granted by applications made two credit PER CURIAM. Owens, 30, 1948, for one dated October rehearing granted, A is limited to the applying perma purpose the stated stone and stucco to the rear of question judgment of whether or not the an exist- by should be reduced the sum of the elimination bearing ing house, and the other $2,000 on amount loaned remodeling purpose of same date for the $2,500 Gould excess of the limit we by applying stuc- front house the co of the held 2(b) to be contained in § Appellee plaster. Owens issued to Housing National Act. $2,500 each. two checks in the sum of found that The trial court separate loans loans made to Owens were property improvements same single and not $2,500 loan in excess 2(b) of limitation contained § Housing trial Act. The the National $2,500 limitation court construed the mean that loans could be made on a property improvement any number NATIONAL LABOR RELATIONS single piece of BOARD long loan exceeded no one so v. $2,500. construction think such a We RETAIL CLERKS INTERNATIONAL limitation contained erroneous. The ASS’N, A. F. L. et al. 2(b) amount the total establishes § No. 12434. improvements may loaned for existing To hold other to an structure. United States Appeals Court of $2,500 limitation render the wise would Ninth Circuit. Congress meaningless. Certainly did April borrowing for unlimited intend to allow existing improvements structure. to an applications state Owens loan property im- which the provements of a are to be made consist dwelling apartments. A store and two (b) loan for loan is defined as a Class-1 repair improvement the ing “of an exist- used or to be used as structure dwelling apartment house or for two 201.2(k). families.” C.F.R. more § any amount Such loans be made $10,000. exceed not to U.S.C.A. § 201.4(b). Thus, 1703(b); 24 C.F.R. § qualify loans fail as a while the Owens (a) $2,- loan Class-1 because excess of 500, they fully (b) qualify as a Class-1 appellee loan and entitled recover incurred thereon. losses alleged by appellant errors Several have been made the trial court are called to our attention where the court conflicting testimony. acted is no such There infirmity testimony credited the trial court as would au- findings thorize this court to disturb the testimony. on such
based credited Bone, Judge, Circuit dissented in Judgment part. affirmed.
George
Counsel,
Bott,
J.
Gen.
David
Findling,
Counsel,
P.
A.
Associate Gen.
Counsel;
Somers,
Norman
Asst. Gen.
Reel,
Johnson,
Frederick U.
Robert G.
Attys.,
B., Washington,
C.,
L.N.
R.
D.
Penfield,
Dryer,
Louis S.
Albert M.
Attys.,
B.,
Francisco, Cal.,
N. L. R.
San
petitioner.
Davis,
Burdick,
Roland C.
J. D.
Car
roll,
Freidenrich,
Davis &
San Francis
co, Cal.,
Lippman,
Counsel,
S. G.
Gen.
Chicago,
Ass’n,
Retail Clerk's International
l.,
Galliano, Oakland,
F.
James
Il
Cal.,
respondents.
Hanson, Washington,
C.,
Elisha
D.
Johnston, George
Willard S.
H. Johns-
ton, Orriek,
Herrington
Dahlquist,
&
Sutcliffe,
Francisco, Cal.,
San
for Safe-
way Stores, Inc., amici curiae.
BONE,
POPE,
Before
ORR and
Cir-
Judges.
cuit
Judge.
POPE, Circuit
Respondents are Retail Clerks Inter-
(herein
Association, AFL
national
“In-
ternational”), Retail Clerks’ Union Lo-
(herein “Local”),
648, AFL
which is
cal
International, and
an affiliate of
certain
organizations.
labor
officials of those
until. 1948 Local held collec-
From 1937
bargaining contracts with
tive
of,
other retail
.and most
County.
operators in San Francisco
store
represented
cov-
Local
and its contracts
employees in these stores
ered all
exception of butchers.
In the
with
during
the course of
summer of
negotiations
Local for renewal
existing bargaining agreement, Safe-
‘
sought
time
the first
managers”
excluded
its “location
agreement.
coverage
new
.the
manager
one
There was
Safeway’s
charge
He
stores.
each of
manage-
representative was the sole
store and
ment
duties,
visory powers
but he also
provided
perti-
parties,
along
file of all
rank
performed,
part
“clerks”), many non- nent
as follows:
(herein
food clerks
supervisory
his
routine
tasks
Asso-
“Retail Clerks International
*3
day.
ciation, AFL,
Un-
and Retail Clerks
Local 648
ion
the
assent to
Local refused
When
“1. Shall not:
managers from the
of location
exclusion
«(cid:127)****
agreement,
bargaining
new collective
1948,
31,
un
filed
December
on
bargain collectively
(b) Refuse to
charges
Na
practice
with the
labor
fair
employees
for the
against Lo
Relations Board
tional Labor
paragraph
the unit described in
IV
issued
The Board
cal and International.
stipulation
quoted]
the
[above
charging
complaint
and Inter
Local
insisting
demanding
as a condi-
refusing
collec
national with
bargaining
tion to such
that Safe-
8(b) (3)
tively,
the
in violation
§
collectively for
Act,
amende
National Labor Relations
visory employees within the mean-
1949,
29,
September
after the
d.1 On
ing
2(11)
of Section
of the Act.”
begun,
hearing
complaint
had
on the
subsequently petitioned
Board
for
negotiated by
be
settlement
on Janu-
enforcement of its order and
International, Safeway,
Local,
tween
court,
ary 14, 1950
with the con-
this
As a
for
Board.2
the
General Counsel
Local,
sent of International and
entered
parties
part
en
the
of this settlement
decree.
an enforcement
which,
stipulation
so far as
tered into a
May 19,
Thereafter
1950 the
provided
material,
as follows:
here
adjudge
petitioned this court to
Board
employees
de-
“All
contempt on
in civil
partments
71
Stores
ground
had
refused
excluding
County,
in San Francisco
gain
demanding
as a
for clerks
any other su-
location
pervisory
bargaining
dition to such
employees
as defined
bargain collectively for
location man-
its
appropri-
Act,
a unit
constitute
agers. After
the cause
our remand of
purposes
collective
ate
bargaining
findings
ques-
on the
to the Board for
meaning
within
whether
location
were
tion
9(b)
Said em-
Section
of the Act.
“supervisory employees” within the
ployees are, and have been since be-
371,
meaning
Act,
F.2d
see
exclusively
1948, represented
fore
to this court
the case
returned
bargaining by Re-
for collective
(on March
of 1952. Thereafter
October
spondent
and its
International
opinion
1953),
31,
handed down
we
agent,
Local,
Respondent
both
a decree on the same date
and entered
holding
organizations with-
whom are labor
contempt.
respondents in
See
meaning
2(5)
in the
Section
granted
rehearing,
We
opinion.
ing by Safeway
for location
following
Respondents
Respondents
de-
made the
have admitted to demand
ing
mands in the course of
freedom on the
of the clerks
a clerks’ contract:
to strike
provided
are not
*4
agree
bargaining
for in the
agreement,
if it did
1. That the
ment;
persons doing
that
the work of
performed
employees
all
who
cover
(which
clerks
managers
would include location
work,
a no-
should not contain
clerks’
day)
for
of their work
clause,
clause con-
unless such a
strike
any
should have the benefit of
collective
guarantees protecting
suitable
tained
bargaining agreement that should be en
“against
or
clerks from loss of work
into,
tered
or in the alternative that lo
con-
abuses of union
encroachments and
managers
cation
should not do the work
job;”
ditions on the
clerks;
and that
location
agreement
2. That
contain a
the
among
should be selected from
the
Safeway
requiring
fill
vacan-
clause
clerks. And it is further admitted that
managers’ positions from
in location
cies
respondents called a strike when its de
clerks;4
ranks of the
mands were not met.
It will not do to
agreement contain a
3. That
solely
that the demands made were
providing
man-
that no location
clause
ager
ap
in the interests of
the clerks
any
supervisor employee
or
other
propriate bargaining unit.
effect of
The
perform clerks’ work under terms
should
prohibit
attempts
our decree was to
all
employment less fa-
and conditions of
respondents to exact
concessions from
provided
to the union than those
vorable
supervisory employees
as
contract; or, in
al-
in the clerks’
reaching
price
agreement
as
ternative,
employ
to the terms and conditions of
agreement
plain
contain a ment
clerks. We think it too
That
argument
providing
that no location mana-
clause
demands
ger
employee
directly
any
supervisory
prohibi
other
flew
the face of this
perform
should
clerks’ work.5
tion.” We think that what we there
paragraph
argument
described in
IV of the
4. There was some
unit
between the
stipulation
20-CB-43,
parties
rehearing
No.
consti-
case
to whether
this
decree of this
tute violations
the said
demand was ever
fact made. The de-
by respondents
mand admitted
Court:
words:
“In each
these
department
store or
a no-strike clause
“1. The demand that
tffere shall be one clerk des-
proposed bargain-
from the
be eliminated
manager.”
ignated as a
The Board and
ing contract.
position
took the
this re-
that no
man-
“2. The demand
quired Safeway
to select
perform
ager shall
the same work as
ranks of clerks.
In an
affidavit
performed by
in the
herein,
Secretary-
Jinkerson,
filed
O. H.
bargaining unit, sometimes
above stated
Treasurer
of Local and one of the re-
work’, under
called ‘clerks’
terms and
spondents, similarly interpreted this de-
employment
less favorable
conditions
mand.
provided
those
in a
than
unit;
covering
rehearing respondents
argued
within the
tract
those
said
5. On
alternative,
put
or,
that no location
fourth demand was
forth as a
manager
perform
for,
shall
‘clerks’ work’.
and not as an
substitute
to,
alternative
The demand that location
third
“3.
demand. We think the
among
selected from
the em-
record shows that
it was
shall
made as an
question
ployees in the said
unit.”
alternative.
cannot affect
any
decision in the
case
event.
correct,
decree such demands are in violation
for several'
said
covering
They are
the decree.
demands
reasons.
great range
supervisors’
em-
plain
all,
lan-
there is the
First
They
ployment
working
conditions.
By
guage
decree.
may
super-
employed as
relate to who
respondent unions
that the
was directed
; they
un-
visors
relate
the conditions
bargain collective-
“refuse
should not
work,
der which the
shall
employees in the
ly
relate to
what work
* *
*
insisting
unit described
calling for bar-
visors
do. That is
demanding
as a condition
gaining by Safeway
supervisory
for its
bargaining,
col-
employees.
employees.
lectively
supervisory
”
*
**
position
un-
which
why
A second reason
we adhere
rehearing
ions have taken
interprets
first decision
is that it
misapprehension
discloses
this matter
Board’s order
manner calculat
says:
quoted paragraph
to what
Congress
policies
ed to effect the
*5
say
demands
“Our
The unions
effect
enacting
Act,
in view in
29 U.S.
had
bargaining by us for
do not constitute
seq.
possible
151 et
C.A.
Where
§
any
at such
effort
or
location
bargaining
always
Board’s order
should
be so
bargain-
they
represent
but
construed,
Board,
for the
constituted
ing solely
clerks.”
of the
in the interest
very purpose,
presumably
for that
has
only
they say,
Indeed,
will-
“we are not
sought
accomplish
objectives.
to
those
eager
ing
frankly,
to re-
but,
somewhat
objectives
respects
Act’s
When the
supervisory
linquish
loca-
examined,
employees
are
altogether
under all
and
tion
light
legislative
particularly in the
of its
circumstances.”
history, there can be no
at what
doubt
aiming
prosecution
was
the Board
says
paragraph
quoted
What the
against
complaint
of its
these unions
enough
plainly
shall not
that
unions
procuring
or
and
of the Board’s
when
the court’s
were
der and
decree. Both
employment
clerks
of the
of
conditions
language
phrased in the
the com
of
Safeway bargain for the
plaint.
employment
of the
of
conditions
managers.
words,
unions
In other
primary objective
2(11)
of §
A
they
may
can-
for the clerks but
Act,
to which reference is made
as a condition thereto
not attach
paragraph
decree,
to
in this
for the
shall
right
employer
pro
to
assure to the
his
visory employees.
loyalty
efficiency
of his
cure
supervisors
and
reports
demands
the unions above
and
The four
legislative
require
accompanied
into cer-
to enter
bill
listed
which
bargains
Congress
supervisory
for the
em-
tain
ployees
enacted into the Labor
relating
Management
and
to conditions
Relations Act of
employment.
abundantly
On the face of the
their
clear.6 The re-
made
low
ions,
n ire at
work,
not
and have
quantities
faithful
goods
and do it
“Management,
labor’s
subject
cost,
not
to see
competitively
fault,
agents.
well,
then,
side
right
influence
and to
to correct
—If
just
many
like
they keep
assign
as there are
wo
and in such
what workers
expect,
labor,
loyal
can
settle
or control of un-
are to
them
people
buy
at their
to it
must have
there must
their
when
them at
to their
produce
persons
people
large
want
com-
they
their
what
without
the ‘collective
They
how
collective
plaints
their
to become
“Supervisors
carry
[*]
much
pay
ability
work.
have
and
depending upon
on the
they
action.
supervisors.
#
grievances,
work
distinguished
to take
They
security’
should
whole
No one forced them
[*]
management people.
have demonstrated
care
receive
of labor
but to determine
of the
They
themselves
of themselves
$
pressure
should
abandoned
relations.
rank
it,
[*]
and
do,
'bers, by
training, may
ports
specific
evils
habit and
as to certain
congressional
acquired
anti-employer
an
Here
committees
bias.
which the
thought
excluding
through
proposes
dictate,
the union
avoid
could
may
bargaining,
supervisors
from the its
what the
foremen and other
Congress
(see,
operation
Much em-
not do.
took note
Labor Act.
desirability
8, supra)
phasis
upon
of note
of how some foremen
was laid
refusing
assuring
independence
adopted
policy
unions
en-
protect
plants
rank-and-file.
It was noted
ter
the struck
respect
employers.
happening
prohibition
to their
what had
Here the
been
against
doing
unionizing
supervisor
under the former
clerk’s work
of foremen
would,
enforced,
output”
hurt the
serve to close a store
Act was “bad for
tight
Congress
up
Act was
flowof commercewhich the
case of a strike.
free
promote.7
obviously
contemplate
committees
did
a un-
intended
not
tendency to subservience
noted the
ion should
able to
that much
exercise
legislative
power.
and their associations
the foremen
view of the
his-
rank-and-file,
tory
present
how as
unions of the
Act we must
having
un-
practical matter
rank-and-file
strue the consent decree as
been
dictating
avoiding just
foremen
what the
ions were
framed
a view to
might
might
rights
do.8
sort
encroachment
employer
control his
select and
of the unions here fur-
The conduct
loyalty
supervisors and to obtain their
a fair illustration of the sort of
nishes
thing Congress
cooperation.
trying
get away
*6
Finally,
eyes
from when it made these amendments
we cannot close our
may
supervisors.
respect
with
fairly
It
the realities of the food store business.
knowledge
employer
that an
is but common
that what
be said
would It
opportunity
proposed
sharply restricted in his
is
here is no
to run a
be
loyal
supervisors grocery
judicially
and efficient
store. We know
obtain
selecting
every store, large
small, all the
limited to
them in
or
he is to be
busy
may
mem- clerks
when another cus-
from a rankrand-file union whose
strength
voluntarily,
the
war and our standard of
because
believed
in
file
opportunities
opened
living always,
Congress
must ex-
thus
to them to be
then
operation
such ‘securi-
clude foremen from the
of the
valuable to them
more
than
”
**
*
wrong,
Legislative
ty’.
wrong,
is
His-
It,
and it
Labor Act.
seems
kind,
tory, supra, p.
subject people
who have
306.
of this
initiative,
their
their ambi-
demonstrated
Report
8.
House
to docu-
alluded
n
ability
get ahead,
and their
tion
mentary
“a
evidence which showed
sub-
leveling processes
seniority, uni-
the
of the association
unions
among
servience
fortuity
.
and standardization that
the Su-
rank and file
rare
recognizes
being
preme
funda-
as
Court
unions.”
It
stated:
“The
evidence
(J.
principles of unionism.
I.
mental
are,
foremen’s unions
shows that
Labor Relations
v. National
Case Co.
wholly
upon
be,
dependent
rank-
must
576,
Board, 1944,
[64
767 question, wholly clerks tween these and the faith different raises a doing put which flows from kind moment. the same off for the will of work. majority bolster seek to holding that our decree with the rule question There is re next the whether interpreted as to effectuate should be so spondents in fact made the no-clerks’ policy Apparently the Act. good in demand on behalf of faith N. rule is case of L. extracted from our clerks, they pressed it for or whether R. B. v. Corp., Cir., & Chemical American Potash forcing Safeway purpose the sole accept 234-235, 129 F.2d (which respond the alternative case A.L.R. 874. A brief look at that kept open ents have at all times to Safe lays no such will reveal it down way) bargaining respondents for by broad rule as that here relied location pretation If latter inter says, majority. in What that case respondents’ is cor conduct effect, inter- is that a decree should be rect, then have indeed refused Act, preted harmoniously with the “bargain collectively” clerks, for under barg proposition quar- no with which I have “good applicable faith” test of rel. That does all mean that this not at demanding aining,9 by as a condition to range through Court the Act and bargain such history, “policy” of the deduce the managers, location in violation of therefrom, policy Act and then read our decree. give very into it a dif- a decree so as to question, then, is whether meaning than ferent and much broader making of the no-clerks’-work demand probably it had when It is true entered. good amounts to a refusal to issuing purpose that the of the Board authority faith. Our under the Act the order enforced us was to serve determine when a demand is assuring purpose the Act’s ployers to em- proper, “proper” subject or what is a loyalty the undivided of their bargaining, very limited. We cannot supervisory personnel, but the order and compel “agree respondents pro- to a our enforcement decree undertook to posal require making of a con- only way, achieve that end ly, by one name- 8(d) cession”. Act. We are § prohibiting from at- judgment upon allowed to “sit tempting bargain jointly lo- both bargain- substantive terms of collective ques- cation and clerks. The ing agreements.” National Labor Rela- tion whether have done Co., tions Board v. American Nat. Ins. prohibits what is the 395, 404, 824, 829, 343 U.S. 72 S.Ct. subject proper of concern here. More- Appeals L.Ed. 1027. The Court of over, principle I cannot see that the Circuit, holding the Fifth that an loyalty” “undivided employer had not violated a decree re- holding any way served quiring good faith, it to no-clerks’-work violative of say: this to Indeed, would seem decree. doing good prohibit requires “The law faith bar- *9 gaining purpose them clerks’ work would tie more close- with the of reach- Safeway’s by ing agreement. ly to elimi- It does not re- nating community quire any particular of interest be- form of 8(d) negotiation ployment, agree- Act reads as 9. of the follows: or the Section of an purposes section, any question “(d) ment, arising thereunder, of For the or collectively performance bargain and incorporating any agreement execution a of written contract obligation employer mutual of the reached if representative employees requested by party, of the either and the but such obli- compel gation party times and meet at reasonable confer in does not either respect hours, agree proposal require wages, good faith with to a or the mak- * (cid:127) ing terms and conditions em- other of a concession: 768 agreement respond-. respond- reached. The stances there was no reason thing .-single ques- ents to ents did not ask concern themselves with managers not, if it it could tion whether location should
the union that *** long agreed to, or should to. not do clerks’ So wanted have work. respondents bargained jointly both us to determine wheth It is not for they posi- clerks, in a proposals union or er the protect respondents tion to interest and further the those of the would employer em of ’both. been best for'
ployee.
to de
for us
It is sufficient
quite
when
situation was
different
not,
respondents have'
terminé that
respondents first made their no-clerks’-
order,
contempt
of this court’s
Safeway.
At that time
work demand
bargain.” N.
failed and refused
subject
respondents were
to our consent
Co., Cir.,
R.
5
L. B. v.
Mills
Whittier
bargain
required
decree which
them to
725,
123 F.2d
728.
injecting
separately for clerks without
(cid:127)
recognize that an demands on behalf of
into
At the
time I
same
bargaining.
good
such
represented
While
faith
absence
majority
Safeway’s
by
patently unrea-
lo-
sometimes be shown
time,
by
cation
at that
there was
well
other cir-
demands as
sonable
they
no assurance that
would continue
N. L.
v. Dalton
cumstances.
Telephone Co.,
R. B.
See
811;
Cir.,
to do so. There are no unfair
labor
N.
5
187 F.2d
against
Pilling
Co., practices
supervisors.
George
See
2
P.
& Son
§§
R. B. v.
L.
(3)
14(a)
Act;
Cir.,
Texas Co.
v.
119
38. If
F.2d
B., Cir.,
demand,
N. L. R.
in its
F.2d
Safe-
viewed
rio-clerks’-work
setting,
discourage
wholly
free to
the union
and un-
unreasonable
managers by
membership
its
precedented
matter of collective
as a
employers
gaining
means as were
practice generally,
available
be-
if it was
or
Wagner
passage of
obviously
fore the
Act.
never be ac-
such that
cepted
could
it
Moreover, Safeway
clearly
not be com-
by Safeway,
could
served
it
by
pelled
its
legitimate
clerks,
law to
man-
then
no
interest of the
agers
strong
agree
majority
and there were
indications
that in
I would
bargain that
was not inclined to do so
pressing
failed
except on
good
its own terms.
faith. But unless the
those ex-
can be
have reached
said to
did
How
all this affect clerks? Man-
pass
tremes, it
is not
this’ court
agers
always
done a considerable
speculate
re-
its
about
merits
amount
clerks’ work. There was no
pressing
spondents’
it.
motives
given
assurance that
would not be
the no-clerks’-work
I do not
think
more of such work when
covered
tested, by
standards,
bargaining agreement.
demand,
these
It is not un-
good
long
refusal to
usual to work
hours
amounts to a
at
majority
might
opinion
salary,
practice
In
a flat
and such
faith.
completely
wrought
change
proved profitable
Safeway.
well have
overlook
bargaining relationships
employers
is it
between Nor
unheard-of for
in the
respondents
attempt
“supervis-
the Board’s
create additional
against
jobs
respondents ory”
place
order
so
more of their
issuance
enforcing
protection
entry
outside the
of a decree
Co.,
system
operation
Inc.,
Act. See
Texas Utilities
of store
West
order.
1638;
Daily
Judge Pope’s
News,
opinion exist- 94 N.L.R.B.
Jackson
described
Safeway’s
Safeway’s
bargaining as out in worked the labor many the same is also true of de- union ” movement the United States.’ employers not, mands on which are page 408, page U.S. at 72 S.Ct. at reason, held to amount to a refusal making good If Though de- the no-clerks’-work pro- faith. respondents guilty testing against vigorously mand a re- demand, good fusal to because, faith it must accep- be even does not assert that particular circumstances tance it would create a situation that case, impose the demand seeks not met. could on such an extreme burden Finally, majority do not know and must know that not precisely I do not know respond- how far not, possibly accept will but cannot ents’ no-clerks’-work demand seeks to re- majority it. seem to take view doing strict location clerks’ that the demand is of that character. know, work. We do not example, respond- I am convinced that what whether would allow man- impose impossible agers ents seek would to do clerks’ work when emer- Safeway. majority say gencies burden demanded it or to the extent *11 proper necessary work demonstrate et al. WOLIN Provisions clerks. methods untrained v. commonly for such eventualities UNITED STATES. re- clauses contract found No. 6717. stricting non-supervisory Appeals term personnel. United States Court of Fourth Circuit. respondents’ work” as used “clerks’ Argued April 5, An defined. demand has never been 1954. agreement and between April Decided July 24, 1950, Safeway, is which dated effect, provides that if apparently still valid held demand is no-clerks’-work Court, contract clerks’ then the this par- clause, contain such shall agree upon in said and include ties “shall ‘clerks’ the term contract definition Precisely herein.” [t]
work’ as used permitted or is not what work is ques- apparently, reserved
tion bargaining has been which table, properly so. holding respondents’
I think that of our demand violative no-clerks’-work ordering it withdrawn decree sphere reserved Court invades may be,
bargaining process. It as Safe- indicate, permit seems press will this demand Safeway to return force jointly clerks, long practice obtained before this begun. (al-
litigation It though know) that we cannot to ac- as an alternative
will choose this
cepting demand. no-clerks’-work possibility not affect our should
But present posture decision province of this It not the case. Court, it, insure that see goal,
will have achieved its interpret but That and enforce our decree. guarantee Safeway a did not negotiated on its contract own
clerks’
terms. point prolonging no this al- I see lengthy opinion
ready awith discussion first second de- Suffice it I think mands. legitimate too, demands, those gaining demands on clerks behalf were therefore not of our violative
decree.