National Labor Relations Board v. International Union of Operating Engineers, Locals 542, York County Bridge, Inc., Intervenor
532 F.2d 902
3rd Cir.
1976
Check Treatment

*2 DUSEN, Before VAN ADAMS and WEIS, Judges. Circuit OPINION OF THE COURT WEIS, Judge. Circuit Because the means selected were not tai- statutory pattern, lored to the the National Labor Relations Board cut off the efforts'of a trade union to eliminate what it termed operation” the “double-breasted of a con- tractor. The Board directed the local union with a subcontractor without insisting on certain contractual clauses de- to limit the signed sources from which the employer could obtain equip- approach, ment. An alternate the Local’s enlarge representation endeavor at expense of a rival union through im- proper bargaining with the employer, was prohibited. also We will enforce the order. County Bridge, York Inc. ais subcon- tracting engaged firm principally pile bridge driving and construction and is a wholly-owned subsidiary of G. A. and F. C. Wagman, Inc. is also in the con- many years business. For struction its em- represented have been ployees by District 50, Allied Technical and Construction Work- merged ers which later with the United Steelworkers.

Wagman was unable to secure subcon- general where the tracts contractor was its collective required under agreement employers to sublet Counsel, Nash, Peter G. Gen. John S. represented were whose workmen Counsel, Patrick Har- Irving, Deputy Gen. building trade union. To AFL-CIO meet Counsel, Moore, din, Gen. Elliott Associate situation, in 1960 incorporated Counsel, N. L. R. Deputy Associate Gen. Company which adopted poli- the York Brice, Cirker, Roger T. Wash- Alan D. cy securing through building trade C., petitioner. for ington, D. hiring halls. Freedman, Vigder- E. Martin J. Abraham joined In York the Contractors As Freedman, man, Borowsky Lorry, & Phila- (CAEP), of Eastern Pennsylvania sociation Pa., respondents. delphia, multi-employer group, and thereby be Shawe, Hament, K. Carroll John party Earle S. came a collective bargaining III, Williamson, Davison, Warren M. with Local 542 agreement Shawe of the Interna but, Operating tional Union of Engineers.1 addition, required would be expired When that contract discuss some problems. additional advised CAEP that York and several was told that it would have to end its dual would be operation other contractors “carved out” of period within a of time to be negotiated, for a new because and until agreement was *3 reached, companies.”2 were “dual Local 542 would not furnish worke rs.3 The union considered the compa- “dual

nies,” During September York-Wagman, as such a threat to October that it job sign for Local stated would opportunities members the standard contract but refused to provisions bring contractual submitted to “un- map agreement.” der the designed CAEP which were to the Upon resolve the to accept union’s refusal condition, this problem. proposals The union desig- were a complaint was filed before the nated as Section 11 of a N.L.R.B. in new contract: alleged which York that it was being “Section 11—Non-Union Equipment: coerced to enter into a prohibited contract (a) operator required No shall be to by Section of the National Labor Rela- operate equipment belonging to a con- Act, 158(e). tions 29 U.S.C. § supplier with tractor or whom this Local signed relations, judge administrative law provided, Union is not in found that object the union’s was to equipment compel York-Wag- Union available the local- only man to employ members, ity. party agreement No to this a shall result which he did not believe supply equipment rent or was in viola- unmanned anyone doing construction dismissed the work covered com- plaint. reversed, The Board by agreement who is signed not in that object the union’s was to relations with this Union. force York’s agreement to Section 11 of the standard (b) employee represented No by this contract, provision a which was prohibited Union on construction work shall be re- 8(e). by Moreover, Section the Board held quired operate equipment of or for that the union had failed to bargain as Employer who has interest in a firm required by the Act. One member of the company doing or construction work three-man panel dissented. jurisdiction within this Union and signed which is not in relations with this The Board ordered the union Union.” with York and to desist from requiring the enter into prohibited a agree- agreement no When by had been reached insisting ment or that agreement cover May the union went on strike and Wagman employees currently repre- its members did not return to work until by sented another labor organization. We July 13,1971. the next day, representa On are asked enforce the order. tives of the “carved out” employers, includ York, ing who were still struck, met with asserts, alia, The union inter that the ease negotiators. the union The Local advised is moot because the standard contract that not would the out” em “carved incorporated which Section 11 expired on ployers sign have to standard contract April 1973 and the succeeding agree- Respondents in this action are Locals bargaining agreement with Local 542 or anoth- point, 542-A and 542-B. Since to this purposes er affiliate. The AFL-CIO and effects singular have referred to them in the as arrangements completely these are more de- 542,” “Local the “Local” or the “Union” and veloped in the text. disposition the identically, of the case affects all of them shall do we the same. 3.In seemingly Local 542 settled differences, company” 2. The terms “dual their and for a while York and “double- did em- operation,” purposes case, ploy breasted However, par- members of the union. enterprise refer ato which con- disagreed ties soon on the terms of settle- companies (e.g., parent sists two and its ment, and the strike resumed. subsidiary), only one of which has a collective Moreover, the Board’s decision was not language. The that contain did not ments the legality limited to of the contested con- to re-ne- willingness had indicated language necessarily but included the tract it section so that the controversial gotiate bargain. refusal An order directed to- 8(e). compliance with Section inbe would phase existing dispute ward that can- lan- objectionable” “allegedly With not be considered moot. the union submits present, longer no guage enforcing the order necessity for 8(b)(4)(ii)(A)4 of the National La is moot. and the case exists longer provides Act is an bor Relations for a union to threaten unfair firmly established object coerce an where an is to or moot not become does N.L.R.B. him into an prohibited by force offending party. compliance mere (e). gen Proscribed agreements subsection continuing obligation upon There remains prohibit employ those which erally are *4 pre to Board is entitled and the party, the using or handling products er from the practice of an unfair resumption the vent employer require employer or another An decree. an enforcement use of by the doing any per business with other to cease made, not become order, when does lawful cargo” “hot son—so-called clauses.5 The circumstances changing solely however, because moot does not extend to an prohibition, v. N. L. R. C-B Buick its need. between a may agreement organization lessen labor 1974). The (3d Cir. in the B., an construction indus offending relating contracting repetition try of the work “to be possibilities site of continuing rela- done at construction of a in the context conduct is a relevant tionship between Co., Raytheon N.L.R.B. consideration. view, In the Board’s Section ran afoul 26 L.Ed.2d 90 S.Ct. statutory prohibition because it con- Mills, Textile v. Mexia (1970); N.L.R.B. agreement by York to stituted an cease 94 L.Ed. Inc., with a doing non-signatory compa- business N.L.R.B., supra. Buick v. (1950); C-B involving not in situations loss of work ny Thus, members. by Local 542 had if 11 from the The exclusion Section contract and wished to been awarded in effect does not now contract

master members, they Local 542 would not employ union’s Despite the moot. the issue make permitted equipment to use rent- have been precise concession, on the agreement company which did not have a ed from a and, with York been reached wording has with Local 542. The agreement determination in- judicial concluded that construction absent Board proscribed, 8(e) in did not exception review Section dustry under clauses boycotted supplier of un- because apply would remain uncertain. negotiators 4. 29 U.S.C. a labor person try affecting refrains enter into handling, or “(b) (4)(ii) (A) forcing or “(e) prohibited implied, object labor [*] It shall be an engaged organization or its or shall be to enter using, thereof organization whereby threaten, coerce, agrees 158 reads [*] commerce, contract subsection in commerce selling, transporting an unfair labor into is— [*] requiring to cease such unfair labor any agreement which or where [*] agreement, pertinent (e) agents— any employer or refrain from or restrain or in an indus- any employer [*] in either case practice ceases part: section; express [*] or oth- any for for or 5. For a review tions, of Section other with That ter erwise tion, relating agreement such extent and an of work to be ing, National agreement containing see structure, alteration, nothing in this subsection shall any dealing to the Note, 8(e), other Labor Relations entered unenforcible done at the such Hot between contracting or other work . painting, person, and or to in the any N.Y.U.L.Rev.97 into heretofore or hereaf- Cargo Agreements Under an clause and its ramifica- agreement cease construction a labor and void: or site of the construc- or Act: An repair products any doing subcontracting organization contract or shall be to of a build- Provided, business Analysis industry apply any equipment employees manned did not have the traditional refusal of craft unionists jobsite offending on the section of alongside to work non-union men on the beyond per- The project. “reach[es] same exemption does not jobsite.” formance of work at the agreements extend to other such as those relating subcontracts for supplies and 8(e) union’s is that position The Section to be transported materials to and deliv- apply only to products was intended ered on the construction site.” incorporated which would be into the struc- than to tools ture itself rather which were The latter statement qualified was later building Further, operation. used in the National Woodwork Manufacturers Assn. v. argues exempting provi- the union that the B., supra, N. L. R. where the Supreme applies equipment so here because the was approved Court a ban on pre-cut the use of jobsite. to be used on the building doors in a because the restriction protected jobs of union members on The issue is whether 11 is aimed Section particular project. The Court charac- at the relations of York vis-a-vis its boycott terized the there as a shield job own or whether “tactically it is protection and not as a organiza- sword for satisfy objectives calculated to else- activity. tional 386 U.S. at where,” National S.Ct. at Manufacturing Woodwork 1245, 18 L.Ed.2d at 349. v. N. L. R. Association policy behind (1967), is, whether the activity of the industry proviso does sup not *5 primary union was or secondary. See A. port position. the union’s Its insistence on Pyle, B., Duie Inc. v. N. L. R. 383 F.2d 772 boycott York’s of a non-signatory’s equip (3d 1967); Retail Cir. Clerks International protect ment does not serve to jobs of Association, B., Local 1288 v. N. L. R. 129 its who may members called 92, U.S.App.D.C. 390 F.2d 858 any specific project work on which has been general, secondary In York.6 organ activities for awarded to Whether York owned or purposes prohibited. izational recog equipment In leased the would have no effect special problems nition of the of the con of on the number men employed on a par however, industry, Congress struction en project. ticular proviso 8(e). acted the to Section It is not a The union’s restrictive view of the sub exemption explained broad as Court in ject matter of the hot cargo e., (i. clause not Connell Construction Co. v. Plumbers & equipment) to extend to and its expansive 100, Local Union Steamfitters No. exemption proviso view of the are inconsist 95 418, S.Ct. 44 L.Ed.2d ent with the developing body of case law. (1974), 428 single but limited to a situa Equipment, In Acco Construction Inc. v. N. tion, allowing restrictive subcontracting B., (9th L. R. 1975), 848 Cir. on-site agreements “only in relation to work done repair heavy construction equipment was jobsite.” on a held to be outside the exemption and, conse County In Essex & Vicinity District attempts to quently, organize the mechanics Carpenters B., Council of N. L. R. 332 were prohibited secondary activities. In 636, (3d 1964), Cir. we said the cases, two courts decided that the delivery treatment was special ready-mixed concrete jobsite, to the even apparently recognition “. . . in of when product additional work on the peculiar to the problems construction in- scene, required at the was not by covered dustry, particularly those resulting from the industry exemption. Driv sporadic stoppages ers, Salesmen, work occasioned Local Union No. 695 v. N. L. Lesnick, Security Secondary 6. See Job and bargaining employees only, efforts involve Boycotts: 8(b)(4) The Reach of NLRA §§ distinguished as from ‘members of the union in ” 8(e), 1000, (1965), 113 U.Pa.L.Rev. general.’ See also Milk Drivers Union v. N. states, which the author “The second limitation B., (7th 1964). L. R. 335 F.2d 326 imposed protective the Board has insists that B., 93, U.S.App.D.C. representation 361 F.2d 547 disavowed R. of York employ ees, N. L. R. B. v. International Brother- (1966); the Board ordered the union to Teamsters, 294, Local 342 F.2d 18 good required by hood of as 8(b)(3)7 faith 1965). (2d Cir. Local 542’s of the Act. desire to become representative best, argument At the union’s makes required subject was not a bargaining interpretation a doubtful out and, therefore, the Local was told to “re Act, but in such situations the Board’s in holding the negotiations hostage frain from application terpretation are entitled to a non-mandatory to a demand for subject.” Building L. R. B. v. Denver & weight. N. Council, Trades Construction While are free to include L.Ed. subjects voluntary their collective bar (1951). We fail to see how the rationale of may those matters gaining, not be made eliminating friction between union and non agreements on prerequisites mandatory jobsite workers on a could have items. N. L. R. B. v. Wooster Division of equip use of inanimate application Corp., Borg-Warner County Vicinity Essex & District ment. (1958); Industrial Union B., Carpenters supra. v. N. L. R. Council Shipbuilding of Marine Workers v. N. The Board’s conclusion that Section (3d L. R. 11 violated Section was not erroneous. supports posi The record here the Board’s Local 542 wished tion that to take over 542 also contests the representation employees from that, It insists when York did of coercion. Operating the United Steelworkers. Wagman, its ties with the union not sever Engineers attempting, preserve were not to longer had desire to enter into a existing representation arrangement their bargaining arrangement. How collective but, rather, expand unit. ever, based on substantial evidence in the objective of this nature is not a Since record, contrary. the Board found to the matter, mandatory the union’s conduct, the Local’s course of felt that both *6 constituted a strike, insistence failure to and after the including before good faith. N. L. R. B. v. bargain in meetings with York an inten established Brotherhood Long International of enter into a contract with the com tion to shoremen, (7th Cir.), 661 cert. unacceptable on It is de pany, albeit terms. nied, S.Ct. also that the union has never L.Ed.2d 25 significant R. B. v. International unequivocal (1961); formal and disclaim N. L. Brother issued represent employees. Co.], York Electrical Workers er of desire hood of [Texlite (1958), enforced, Consequently, the Board had substantial 119 N.L.R.B. (5th 1959). in the record for its that support See also Smith Steel attempting the union was to coerce York Corp., v. A. O. Smith Workers signing illegal agreement in viola into (7th Board’s conclusion is 8(b)(4). fully § consistent both correct with the Supreme of the Act. As the spirit Court The Board found that Local 542 was at in Connell Construction Co. Plumb said by tempting enlarge fitters: ers & Steam replacing represented the union which major Wagman employees. Having determined “One of the aims of the 1959 Act Operating Engineers ‘top-down’ that the not organizing Local had was to limit cam- 7. 29 U.S.C. employer, provided his gain (d) “[T]o collectively For the [*] refuse to § [*] 158(b)(3) purposes is the [*] it is the reads in of this performance [*] collectively representative section, [*] part: with an [*] to bar- of terms and conditions with representative mutual reasonable respect obligation times and confer wages, of the of employees employment employer hours, to meet at good . . other faith . paigns, ADAMS, which unions used economic Judge Circuit (dissenting). weapons recognition to force from an em- The Court today enforces an order direct regardless of the ployer wishes of his ed at violations of 8(b)(3) sections Congress employees. accomplished this 8(b)(4)(ii)(A) National Labor Rela by enacting 8(b)(7), goal which restricts § tions Act.1 Because the Board failed to primary recognitional picketing, and by findings make certain which in my view are tightening 8(b)(4)(B), further which § necessary to the resolution of the controver the use of prohibits secondary most tac- us, sy agree before I cannot that enforce organizational campaigns. tics Con- ment of the is appropriate at struction unions are fully covered this time. I am therefore constrained to The only special these sections. consider- dissent. given ation organizational them in cam- Fundamental to the dispute in this mat paigns 8(f), is which ‘prehire’ allows § identity ter the “employer” with agreements in the industry, which Local to deal in its collective only safeguards but under careful pre- bargaining negotiations on behalf of its serving rights workers’ to decline union members. The Local that maintains representation. The legislative history County Bridge (York) and G. A. & F. C. accompanying 8(f) suggests also that Wagman, (Wagman) Inc. are integrated Congress may not have intended that corporation, constituting one employer. picketing strikes or could be used to ex- argues separation that of the single prehire tract agreements from unwilling parts into two is in effect a sub employers.” (footnotes omitted) 421 U.S. terfuge designed permit the company to at at S.Ct. 44 L.Ed.2d at 431. obtain construction contracts both within responds The union that since York and Philadelphia (where subcontractors Wagman were closely interrelated, so not signatories agreements with AFL- single employer, were a and thus there was CIO affiliated prohibited unions are from duty bargain. violation How- working on construction projects) and out ever, the Board did not find Philadelphia (where side no such limitation a single and, constituted exists). Under this set hypothesized even if such a determination had been facts, bargaining would place take properly made, it could not have made bargaining on between Local 542 and the unitary York- expansion the unit a mandatory item. Wagman Company.2 York, course, takes case, In the context the fact opposite tack. It submits that it and might one be involved does entities, are distinct and that scope not alter the mandatory bar- pressure brought by Local 542 against York *7 N. L. gaining. R. B. v. See I. B. E. W. in order to affect Wagman must therefore [Texlite], supra. reliance, The union’s be secondary in nature. In the context of therefore, upon Local International its understanding facts, of the York urges Engineers Union of Operating v. N. L. R. that Local 542 may not upon insist right (D.C.Cir. 1975), 518 F.2d 1040 is mis- to bargain Wagman with may not im placed that because case turned on whether pose a cargo” “hot clause upon York. actually only there was a single employer. Resting its decision on a ground, narrow we Accordingly, conclude that there was the Board did not make a specific finding no error in the Board’s decision that Local with regard to the identity employer. duty 542 failed to bargain with York. dissenting Over the voice of Acting Chair-

The will be in all respects. enforced Fanning, man it held that the Local’s de- 158(b)(3), 158(b)(4)(ii)(A) (1970). 1. 29 U.S.C. §§ Technical and currently Construction Workers represents engineers em- Complicating legal significance 2. of Local ployed by Wagman enterprise. side of the right represent 542’s for the demand to those See note infra. workers is fact 50 of District the Allied transgressed the dictates of section faith with respect wages, mauds hours, and oth 8(b) the Act. The Board could reach er terms and conditions of employment only by concluding that result resolu- Although . .”3 a union may bring single/dual issue is not pressure economic upon bear employ an determination of the to a unfair essential during negotiations,4 er may not con charges. By enforcing the practice labor bargaining dition upon discussion of mat order, majority of the Court ters about which bargaining is not made agrees with that stance. necessarily mandatory by the 8(d).5 terms of section is, That a union commits an unfair labor different, of the law is My reading how- practice if it refuses subjects discuss my opinion, ruling a on the ever. In unfair “wages, hours, respecting and other terms charges properly cannot labor and conditions of employment” unless the made, case, in the circumstances employer agrees at the same time to discuss finding on prior single/dual a without items that do not concern those matters.6 question. Enforcement thus appear inappro- Board’s order would charge The in this case is that Local 542 priate. to come refused to the bargaining table so long specified as two non-mandatory terms 8(b)(3) Charges A. The Section were excluded from discussion. The first 8(b)(3) of the Act item, makes a union’s non-mandatory cargo clause, hot bargain collectively with refusal an em- part discussed in B of opinion. this practice. an unfair The ployer duty charged 542 is also with demanding negoti bargain collectively, as defined in section ations over a term expanding bargain 8(d), performance “the includes of the mu- ing to include employees Wag- on the obligation tual and the enterprise.7 man side of the Insistence on employees representative meet at inappropriate unit has been times and good reasonable confer 8(b)(3),8 held violative of section [to] 158(d) (1970). 3. 29 Wagman § U.S.C. perform unit. has who the same tasks as the members of Local Union, Agents’ 4. NLRB v. Insurance Int’l possibly and who would be included in the (1960). 80 S.Ct. 4 L.Ed.2d 454 bargaining unit as Local 542’s same members if employer. York and constitute one Borg-Warner Corp., NLRB v. Div. of Wooster Wagman employees currently repre bargain District sented however. If the ing encompass Wag- unit is to both York and symmetrical regard, placing employees, 6. The Act is perhaps Local 542 could man en employer through the same burden ruling by deavor to obtain Board that 8(a)(5), 158(a)(5) (1970). 29 U.S.C. § § are one in the seeking representation a new context of elec (1970), 7. Section 9 of the § U.S.C. among York-Wagman employees all tion who procedures govern sets out the the selec- perform similar work. The election bar of appropriate bargaining tion of the unit. The 9(c)(3) or the contract bar announced in De choice of the unit can be critical to a union’s Co., 121 Metal Furniture N.L.R.B. 995 luxe workers, organizing employer’s success in way (1958), ap in the could stand of such an may represent only employees since a union proach. Security See NLRB v. Burns Int’l who are within a unit in which a Inc., Services, 279 n. majority of the unit voted for the union in a *8 1571, 1578, (1972); 32 L.Ed.2d 61 Brooks v. 9(a), Board-sanctioned 9(c)(1) election. Sections 96, NLRB, 176, 75 99 L.Ed. 125 Act, 348 U.S. S.Ct. 159(a), 159(c)(1) 29 U.S.C. §§ (1954). (1970). bargaining The identification of the frequently unit has been “the decisive factor in NLRB, 8.Sperry Systems Mgt. 492 Div. v. elections, [Bjoard determining whether there 63, Cir)., denied, 831, (2d cert. 67-68 bargaining would be plant collective at all in a 55, (1974); Smith Steel 95 S.Ct. 42 L.Ed.2d 57 enterprise. employers or Unions and 1, (7th Corp., Smith 420 F.2d 8 workers v. A. O. sought gerrymander accordingly.” have Meltzer, B. 1969); Longshore Cir. Douds v. International (1970). Labor Law 290 278, Ass’n, (2d men’s 241 F.2d 281-83 Local 542 was selected in an election taken among the members of the York 910 Wag- majority’s if York and of the Act. The review improper would be employers.9 separate are record indicates that there is a basis for the

man to have found that Local sought Board 542 effect a Wagman are in if York and But a hot cargo such clause in to include its expansion of the bar employer, single bargaining contract with York. I collective Wagman employees unit to include gaining there is such a basis. But that agree that concerning the a matter well be could enough to is not establish a viola- in itself of employment” of and conditions “terms 8(b)(4)(ii)(A), section for the element such, Local 542. As it of the members coercion or union must of restraint subject bargain mandatory of be a would be established. also by Local 542 that be a demand it ing, and 8(b)(3) a would not be section discussed 542 Local refused to furnish York with violation.10 acceptable until an contract had negotiated. Such refusal been constitutes 8(b)(3)charge of the section The outcome within the or coercion meaning restraint of appears Local 542 thus brought against 8(b)(4)(ii)(A)only if the employer section determination of the upon prior a hinge emp upon the union’s referral of dependent Wagman. between relationship depend But whether York was loyees.11 employers, separate are they If Local 542 members turns on upon ent practice part on the of labor of an unfair independent enterprise, whether York is an justified; probably is most if Local 542 successfully in geographi to bid its proba- the Local has unable single a a contract 8(b)(3). operation cal area of without violated section Absent bly not Local, merely a finding, segment I would not enforce the with the or antecedent 8(b)(3) York-Wagman relating unitary entity, relying order section only part of operation. on the Local for violation. finding by Board on the single/dual A 8(b)(4)(ii)(A) Charges B. The Section question appear would thus to be employer ruling to a prerequisite a on whether Local I Similarly, proper believe that a resolu- violated terms section 542 8(b)(4)(ii)(A)charge of the section de- tion Act, 8(b)(4)(ii)(A) just as it is critical upon finding regarding the same pends 8(b)(3) charges. to the relationship Wagman. between York and 8(b)(4)(ii)(A)provides that a labor of the Petition Disposition C. an unfair union commits threatens, coerces, analyses parts or set forth in A and B restrains an when objective a forcing opinion suggest propriety with the to enter an containing of enforcement of the Board’s denial cargo prohibited'by hot clause section the Board for a determina- and a remand to bargaining obligation, 178-79, 341, 9. The collective whose 92 30 L.Ed.2d S.Ct. 357 upon structure is built unit es- (1971). in accord with 9 of the tablished only exists subcontracting Significantly, of work representa- between contractors, which has a similar non-union ef employees. Allied of its Chemical & Alkali tive opportunities of the union fect the work Co., Pittsburgh Local 1 v. Plate Workers Glass members, mandatory held to be a has been 157, 166-70, 390, 383, 92 U.S. S.Ct. Corp. subject bargaining. Fibreboard v. 341, (1971). L.Ed.2d 215, NLRB, alleges 10. Local 542 uses its sub- (1964). L.Ed.2d York, employ lay sidiary, off Local 542 NLRB, 11.Plumbing Pipefitting & Local 5 v. bidding require, giving conditions members as (D.C.Cir.), denied, cert. 370-71 employing per- useful device to avoid such depriving it a essential, (1963); except sonnel where Council, opportunities. work Bldg. the union of substantial Trades & N.L.R.B. Columbus certainly practice would This viewed as hav- Operating NLRB 1225-27 Cf. ing telling impact upon the union’s members. (3d Engineers & Alkali Workers Local 1 Cf. Allied Chemical *9 1963). Co., 157, Pittsburgh Plate v. Glass whether York and are one tion and to deny enforcement without a remand two. In the unusual employer or context of proceedings. further case, however, I believe that a remand and that denial of unnecessary, enforce- the course ment alone is the Court

should take. compulsion

Under of the rule of C-B

Buick,12 majority holds that the case is

not, matter, as a technical moot. With that I cannot differ.

conclusion But the status the current relations between Local 542 America, Appellee, UNITED STATES of York, them, perceive as I leads me to v. that the case no longer represents believe Gary LEE, Appellant. D. and that a dispute, possi viable remand and ble enforcement of a Board order in futuro No. 75-1888. unnecessary. Counsel for Local 542 in United States Court Appeals, open dicated in court that his client no longer has an interest in Third Circuit. negotiating a col York, lective contract with Argued 5, Feb. 1976. cargo a hot clause will not be sought 22, Decided March 1976. position event. substantially Such reduces the Board’s interest in ensuring

that the will observe those rules of play by Congress

fair established in section the Act.13 apparent

8 of When is that no undertaken, will

further appear

Board’s interest would to be attenu

ated, making judicial enforcement of its unnecessary.

This long Court has held judicial that the to a

response Board order may be fash

ioned, in an exercise of the equita Court’s power, so as objectives

ble to further the posture

the Act.14 Given the of the rela

tions between the union

a continuation of proceedings in this matter objectives

would not further the equitable

and the Court’s power should

therefore not be invoked. particu This is

larly light so in development limited concerning

in the record single/dual issue, a newly evolving area of reason,

labor law. For that it seems that it fitting here, be most

would to close the case Buick, NLRB, 12. C-B Inc. v. (3d 1953); 506 F.2d 206 F.2d Cir. NLRB v. (3d Cir. Co., Sprinkler (3d Globe Auto Co., 1952); v. NLRB National Biscuit Cir. NLRB, 13. Cf. H. K. Porter Co. v. (3d 1950) (per curiam). Cf. 102-04, Co., Cheney NLRB Lumber California 385, 389-91, 90 L.Ed. (Stone, J., (1946) concurring). C. C-Buick, NLRB, Inc. v. (3d 1974); Co., Kingston NLRB v. Cake