Before LUMBARD, Chief Judge, MEDINA and FRIENDLY, Circuit Judges.
MEDINA, C. J.: This case was first before us in 1960, N. L. R. B. v. Miranda Fuel Co., 284 F.2d 861. We granted enforcement but not on the theory advanced by the Board, as will be more fully explained below. After the Union applied to the Supreme Court for certiorari that Court decided Local 357 International Brotherhood of Teamsters v. N.L.R.B., 1961, 365 U.S. 667. The Board thereupon requested that the proceedings theretofore had in Miranda be vacated and the case remanded to the Board. This was done, 1961, 366 U.S. 763.
We repeat the statement of facts from our former opinion, with certain additions. Lopuch's loss of seniority arose in the following manner. In April 1957, Lopuch had been employed as a truck driver by the Company, a seller of fuel oil, for approximately eight or nine years. He then enjoyed the eleventh position on a seniority list of approximately twenty-one. About the beginning of April 1957, Lopuch spoke to Jerry and Fred Miranda, chief officers of the Company, and told them he wished to spend the summer in Ohio and do some work for his sister-in-law, whose husband had just died. The period from April 15 to October 15 was a slack season in the fuel oil business, and was so designated in Section 8 of the collective bargaining agreement between the Union and the Company, quoted below. Lopuch obtained permission to leave at the close of business on Friday, April 12, 1957. He told his employers he would return by October 12. In mid-October, however, Lopuch became ill, and he did not return to work until October 30. The illness was evidenced by a doctor's certificate, and the late return was excused by the Company.
Shortly after his return, the Union, at the urging of various of its members, demanded that the Company reduce Lopuch to the foot of the seniority list, on the ground that his late return violated Section 8 of the collective bargaining agreement. The relevant portion of that Section provides:
"During the slack season, April 15 to October 15, any employee who according to seniority would not have steady employment shall be entitled to a leave of absence and maintain his full seniority rights during that period. Any man so described must report to the Shop Steward not later than 8 A.M. on October 15 and sign the seniority roster in order to protect his seniority, and the Employer agrees to accept the certification of said Shop Steward as to availability of such men when called by the Employer. If October 15 falls on Saturday or Sunday, the reporting day shall be the next work day. Any man failing to report as above specified shall forfeit all seniority rights."
When the Union discovered that Lopuch's failure to return to work on time was because of an excused illness, it abandoned the claim that he be dropped from seniority because of a late return to work. Instead, it insisted that he be reduced in seniority because he had left work before April 15. Jerry Miranda, who did not think that Lopuch's early departure would cause any loss of seniority when he gave permission to leave on April 12, was reluctant to agree to this request. However, he acquiesced in the Union's demand that Lopuch be dropped to the bottom of the seniority list.
Lopuch was a member of the Union, and there is nothing in the record that has been called to our attention to indicate that Lopuch had been disloyal to the Union, or had been guilty of any acts detrimental to the Union, or in any way transgressed the rules or policies of the Union. Nor is there anything to indicate he was regarded by the Union officials as a troublemaker.
While the strict legal construction of Section 8 of the collective bargaining agreement, as held by us on the prior appeal, 284 F.2d at page 863, required a forfeiture of seniority only for failure to return on time, the purpose of Section 8 was to eliminate fluctuations of seasonal employment.
Merely because the Union first relied upon Lopuch's late return, and then, after it was established that the late return was due to illness, placed its request for demotion upon Lopuch's early leaving, with the employer's consent, we are told by the Board that the demotion was due to "whim or caprice," that it constituted action by the Union, acquiesced in by the Company, that was "hostile" and for "irrelevant, unfair or invidious reasons," and that it consequently was a breach of the duty of the Union to act fairly and impartially in its representative capacity under Section 9 of the Act. From this so-called "unlawful discrimination" it is supposed to follow that Lopuch's rights under Section 7 were infringed. On the basis of this reasoning the Board concluded that the Union and the Company were respectively guilty of violations of Section 8(b)(1)(A) and (2) and Section 8(a)(1) and (3). The remedy applied was to restore Lopuch to his former position on the drivers' seniority roster, with back pay.
Thus the law question, lying at the heart of the case, is whether any sort of discrimination against an employee, affecting the terms and conditions of his employment, can constitute an unfair labor practice under Section 8, even if wholly unrelated to any union considerations.
We are assisted in our deliberations upon this case by very helpful and well-documented briefs by the American Civil Liberties Union, the American Federation of Labor and Congress of Industrial Organizations, the National Association for the Advancement of Colored People, and the United Automobile, Aerospace & Agricultural Implement Workers of America (AFL-CIO), as amici curiae.
On the subject of fair and impartial representation the Board insists upon the per se approach. Like all cliches and short cuts in the law, designed to make life easy for the judicial officer who has to make the decisions, this merely eliminates the thinking process necessary to get at the root of the matter.Did both the Union and the Company believe in good faith that Section 8 of the collective bargaining agreement, fairly interpreted, meant that an employee, who was entitled to a leave of absence between April 15 and October 15 to "maintain his full seniority rights during that period," forfeited such rights by taking a longer leave of absence? If so, it is difficult to perceive any "discrimination" against Lopuch, as this interpretation, which seems to us far from unreasonable, particularly if made by laymen and not by lawyers, taking into consideration the purpose of said Section 8, applies equally to all employees, union and non-union alike. And yet there are no findings whatever on this subject in the record, either with respect to the Union or the Company, by the Trial Examiner or by the Board.
Thus, even if we were disposed to agree with the Board on the principal law question in the case, we would disagree with its conclusion that the Union, on the meager facts in the record, had taken against Lopuch "hostile action, for irrelevant, unfair or invidious reasons," and we would feel constrained to remand the case to the Board for the taking of further evidence and the making of additional findings of fact. In other words, having requested the Supreme Court to vacate the proceedings already had, and then having adopted an entirely new approach to the case on the basis of issues not previously litigated, the Board insisted upon pursuing its per se theory and took no further proofs but made a new decision on the basis of the old record. We cannot approve of this.
Further proceedings, however, will be wholly unnecessary if we adopt, as we shall, the view of the dissenting members of the Board to the effect that discrimination for reasons wholly unrelated to "union membership, loyalty, the acknowledgment of union authority, or the performance of union obligations," is not sufficient to support findings of violations of Sections 8(a)(3), 8(a)(1), 8(b)(2) and 8(b)(1)(A) of the Act, 29 U.S.C., Sections 151 et seq., as amended. Accordingly, we turn to the discussion of the considerations affecting our decision of that controlling question of interpretation of the Act, and especially of Sections 7, 8 and 9, including the various subsections and subdivisions thereof.
The issue is indeed a narrow one. Section 7 describes the rights of employees "to form, join, or assist labor organizations," to bargain collectively, and to refrain from such activities, except when required to join a union by the terms of a lawful agreement. It is an unfair labor practice for an employer under Section 8(a)(1), and for a union under Section 8(b)(1), to interfere with the exercise by an employee of his Section 7 rights. It is also an unfair labor practice for an employer under Section 8(a)(3), and for a union under Section 8(b)(2), to discriminate "in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization" or to cause such discrimination. ...