532 F.2d 902 (C.A. 3) ments with AFL-CIO affiliated unions are prohibited from Resting its decision on a narrow ground, the Board did 909 mands transgressed the dictates of section 8(b) of the Act. My reading of the law is different, however. In my opin- A. The Section 8(b)(3) Charges Section 8(b)(3) of the Act makes a union's refusal to 2Complicating the legal significance of Local 542's demand for the right to represent those workers is the fact that District 329 U.S.C.§ 158(d) (1970) 532 F.2d 902 (C.A. 3) pressure to bear upon an employer during the negotiations, it may not condition bargaining upon discussion of matters about which bargaining is not made mandatory by the terms of section 8(d).5 That is, a union commits an unfair labor practice if it refuses to discuss subjects respecting "wages, hours, and other terms and conditions of employment" unless the employer agrees at the same time to discuss items that do not concern those matters." The charge in this case is that Local 542 refused to come to the bargaining table so long as two specified non-mandatory terms were excluded from discussion. The first nonmandatory item, a hot cargo clause, is discussed in part B of this opinion. Local 542 is also charged with demanding negotiations over a term expanding the bargaining unit to include employees on the Wagman side of the enterprise." Insistence on an inappropriate bargaining unit has been held violative of section 8(b)(3), and the 910 8 unit would be improper if York and Wagman are separate employers." But if York and Wagman are in effect a single employer, the expansion of the bargaining unit to include Wagman employees could well be a matter concerning the "terms and conditions of employment" of the members of Local 'N.L.R.B. v. Insurance Agents' Int'l Union, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960). 5N.L.R.B. v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 349, 78 S.Ct. 718, 722, 2 L.Ed.2d 823, 828 (1958). "The Act is symmetrical in this regard, placing the same burden upon the employer through § 8(a)(5), 29 U.S.C. § 158(a)(5) (1970). 7Section 9 of the Act, 29 U.S.C. § 159 (1970), sets out the procedures that govern the selection of the appropriate bargaining unit. The choice of the unit can be critical to a union's success in organizing an employer's workers, since a union may represent only employees who are within a bargaining unit in which a majority of the unit voted for the union in a Board-sanctioned election. Sections 9(a), 9(c)(1) of the Act, 29 U.S.C. §§ 159(a), 159(c)(1) (1970), The identification of the bargaining unit has frequently been "the decisive factor in [B]oard elections, determining whether there would be any collective bargaining at all in a plant or enterprise. Unions and employers have sought to gerrymander accordingly." B. Meltzer, Labor Law, 290 (1970). Local 542 was selected in an election taken among the members of the York bargaining unit. Wagman has employees who perform the same tasks as the members of Local 542, and who would possibly be included in the same bargaining unit as Local 542's members if York and Wagman constitute one employer. The Wagman employees are currently represented by District 50, however. If the bargaining unit is to encompass both York and Wagman employees, Local 542 could perhaps endeavor to obtain a ruling by the Board that York and Wagman are one employer, in the context of seeking a new representation election among all York-Wagman employees who perform similar work. The election bar of § 9(c)(3) or the contract bar announced in Deluxe Metal Furniture Co., 121 NLRB 995 (1958), could stand in the way of such an approach. See N.L.R.B. v. Burns Int'l Security Services, Inc., 406 U.S. 272, 279 n. 3, 92 S.Ct. 1571, 1578, 32 L.Ed.2d 61 (1972); Brooks v. N.L.R.B., 348 U.S. 96, 75 S.Ct. 176, 99 L. Ed. 125 (1954). 8Sperry Systems Mgt. Div. v. N.L.R.B., 492 F.2d 63, 67–68 (2d Cir.), cert. denied, 419 U.S. 831, 95 S. Ct. 55, 42 L.Ed.2d 57 (1974): Smith Steelworkers v. A.O Smith Corp., 420 F.2d 1, 8 (7th Cir. 1969); Douds v. International Longshoremen's Ass'n. 241 F.2d 278, 281-83 (2d Cir. 1957). The collective bargaining obligation, whose structure is built upon the bargaining unit established in accord with § 9 of the Act, exists only between an employer and the representative of its employees. Allied Chemical & Alkali Workers Local 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 166-70, 92 S.Ct. 383, 390, 30 L.Ed.2d 341, 350 (1971). 532 F.2d 902 (C.A. 3) 542. As such, it would be a mandatory subject of bargaining, and a demand by Local 542 that it be discussed would not be a section 8(b)(3) violation.10 The outcome of the section 8(b)(3) charge brought against Local 542 thus appears to hinge upon a prior determination of the relationship between York and Wagman. If they are separate employers, the finding of an unfair labor practice on the part of Local 542 is most probably justified; if they are a single employer, the Local has probably not violated section 8(b)(3). Absent the antecedent finding, I would not enforce the Board's order relating to the section 8(b)(3) violation. B. The Section 8(b)(4)(ii)(A) Charges Similarly, I believe that a proper resolution of the section 8(b)(4)(ii)(A) charge depends upon the same finding regarding the relationship between York and Wagman. Section 8(b)(4)(ii)(A) provides that a labor union commits an unfair labor practice when it threatens, coerces, or restrains an employer with the objective of forcing that employer to enter an agreement containing a hot cargo clause prohibited by section 8(e) of the Act. The majority's review of the record indicates that there is a basis for the Board to have found that Local 542 sought to include such a hot cargo clause in its collective bargaining contract with York. I agree that there is such a basis. But that in itself is not enough to establish a violation of section 8(b)(4)(ii)(A), for the element of restraint or coercion by the union must also be established. Local 542 refused to furnish York with employees until an acceptable contract had been negotiated. Such refusal constitutes restraint or coercion within the meaning of section 8(b)(4)(ii)(A) only if the employer is dependent upon the union's referral of employees." But whether York 10 Local 542 alleges that Wagman uses its subsidiary, York, to employ and lay off Local 542 members as bidding conditions require, giving it a useful device to avoid employing such personnel except where essential, and depriving the union of substantial work opportunities. This practice would certainly be viewed as having a telling impact upon the union's members. Cf. Allied Chemical & Alkali Workers Local 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 178–79, 92 S.Ct. 383, 397, 30 L.Ed.2d 341, 357 (1971). Significantly, the subcontracting of work to non-union contractors, which has a similar effect upon the work opportunities of the union members, has been held to be a mandatory subject of bargaining. Fibreboard Corp. v. N.L.R.B., 379 U.S. 203, 215, 85 S.Ct. 398, 405, 13 L.Ed.2d 233, 241 (1964). "Plumbing & Pipefitting Local 5 v. N.L.R.B., 321 F.2d 366, 370-71 (D.C.Cir.), cert. denied, 375 U.S. 921, 84 S. Ct. 266, 11 L.Ed.2d 165 (1963); Columbus Bldg. & Trades Council, 149 NLRB 1224, 1225–27 (1964). Cf. N.L.R.B. v. Operating Engineers Local 825, 315 F.2d 695, 699 (3d Cir. 1963). 532 F.2d 902 (C.A. 3) was dependent upon Local 542 members turns on whether York is an independent enterprise, unable to bid successfully in its geographical area of operation without a contract with the Local, or is merely a segment of the unitary York-Wagman entity, relying on the Local for only part of its operation. A finding by the Board on the single/ dual employer question would thus appear to be a prerequisite to a ruling on whether Local 542 violated the terms of section 8(b)(4)(ii)(A) of the Act, just as it is critical to the 8(b)(3) charges. C. Disposition of the Petition The analyses set forth in parts A and B of this opinion suggest the propriety of a denial of enforcement of the Board's order and a remand to the Board for a determina 911 tion whether York and Wagman are one employer or two. In the unusual context of this case, however, I believe that a remand is unnecessary, and that denial of enforcement alone is the course that the Court should take. Under the compulsion of the rule of C-B Buick," the majority holds that the case is not, as a technical matter, moot. With that conclusion I cannot differ. But the status of the current relations between Local 542 and York, as I perceive them, leads me to believe that the case no longer represents a viable dispute, and that a remand and possible enforcement of a Board order in futuro are unnecessary. Counsel for Local 542 indicated in open court that his client no longer has an interest in negotiating a collective bargaining contract with York, and that a hot cargo clause will not be sought in any event. Such a position substantially reduces the Board's interest in ensuring that the parties will observe those rules of fair play established by Congress in section 8 of the Act. 13 When it is apparent that no further bargaining will be undertaken, the Board's interest would appear to be attenuated, making judicial enforcement of its order unnecessary. This Court has long held that the judicial response to a Board order may be fashioned, in an exercise of the Court's 12C-B Buick, Inc. v. N.L.R.B., 506 F.2d 1086, 1092 (3d Cir. 1974). 13Cf. H. K. Porter Co. v. N.L.R.B., 397 U.S. 99, 102-04, 90 S.Ct. 821, 823, 25 L.Ed.2d 146, 150 (1970). 532 F.2d 916 (C.A. 3) 14 equitable power, so as to further the objectives of the Act. Given the posture of the relations between the union and employer, a continuation of proceedings in this matter would not further the objectives of the Act, and the Court's equitable power should therefore not be involved. This is particularly so in light of the limited development in the record concerning the single/dual employer issue, a newly evolving area of labor law. For that reason, it seems that it would be most fitting to close the case here, and to deny enforcement without a remand for further proceedings. Jeannette Corporation v. N.L.R.B. 532 F.2d 916 (C.A. 3), March 22, 1976-217 NLRB 122 On petition to review Board Order Before SEITZ, Chief Judge, and GIBBONS and ROSENN, Circuit Judges 917 ROSENN C.J.: Petitioner, Jeannette Corporation (the Company) discharged an employee, Cheryl McNeely, for discussing wages with other employees in violation of a company rule prohibiting employees from discussing wage rates among themselves, and for allegedly misrepresenting that she had received a salary increase. The National Labor Relations Board (the Board) found that McNeely's actions constituted concerted activities within the protection of Section 7 of the National Labor Relations Act, 29 U.S.C. § 157 (1970), and that the Company's rule inhibits organizational activities among its employees. Accordingly, the Board held that both the discharge and the rule violate Section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1) (1970). The Company has petitioned to review these findings and set aside the Board's order that McNeely be reinstated and that the Company cease and desist from enforcement of its rule. The Board has cross-petitioned for 14C-B Buick, Inc. v. N.L.R.B., 506 F.2d 1086, 1092 (3d Cir. 1974); N.L.R.B. v. Kingston Cake Co., 206 FK.2d 604, 611 (3d Cir. 1953); N.L.R.B. v. Globe Auto Sprinkler Co., 199 F.2d 64, 70 (3d Cir. 1952); N.L.R.B. v. National Biscuit Co., 185 F.2d 123, 124 (3d Cir. 1950) (per curiam). Cf. N.L.R.B. v. Cheney California Lumber Co., 327 U.S. 385, 389-91, 65 S.Ct. 553, 555, 90 L.Ed. 739, 741 (1946) (Stone, C.J., concurring). |