Friendly and Hays, Circuit Judges, and Dooling, District Judge.*fn* Friendly, C. J. (concurring and dissenting).
The Labor Board seeks enforcement of its order based on findings that the respondent Local Union No. 2, United Association of Journeymen Plumbers, caused Astrove Plumbing & Heating Corp. ("Astrove") to discriminate against four non-union men in regard to hire and tenure of employment [National Labor Relations Act, § 8(b)(2), 29 U.S.C.A. § 158(b)(2)], and that the respondent restrained and coerced the same four men in the exercise of their rights under Section 7 of the Act [NLRA § 8(b)(1)(A), 29 U.S.C.A. § 158(b)(1)(A)].
The New York City Association of Contracting Plumbers, of which Astrove was a member, had a collective bargaining agreement with the respondent, Local Union No. 2. The bargaining agreement contained a priority-of-employment provision which read:
(a) The Association agrees that its members will give priority in employment opportunity to qualified and competent men based upon their length of employment in the geographical areas of the Union as contrasted and compared with men who have worked mainly in other geographical areas. The previous hiring practices in all respects shall continue including practice as to qualifications and competency, and furthermore, members of the Union may be hired as in the past without regard to prior length of service.
(b) In the event that during the term of this Agreement there is a change in the law which will permit a greater degree of Union security to the Union, such Union security provided in (a) above, shall be modified so as to provide the maximum degree of Union security permitted by such change in the law.
Astrove had a contract with the City of New York to install the plumbing and heating equipment in the Bronx Terminal Market; work had started in October 1963. Astrove employed as many as fifty journeymen and apprentice plumbers on the job. It had laid nine or eleven journeymen and apprentices off the job on April 9, 1964, because they were unaccustomed to the difficult work then in hand.
On April 23, 1964, the New York City Commission on Human Rights, charged with enforcement of an anti-discrimination provision of local law applying to work on City contracts (Administrative Code, § 343-8.0), referred Gerry Gonzalez, Bernard Allman, Isaac Borges and Jose Rodriguez, none of whom was a union member, to Astrove for employment. Astrove interviewed the men, got the names of their former employers, and wrote for information about the men's qualifications. Before Astrove had received answers to all its inquiries, the Commission on Human Rights advised Astrove that the four men were qualified journeymen be cancelled unless its hiring practices were modified. Astrove thereupon on April 29 advised Local 2 that the four men would be hired. Local 2 at once dispatched a letter to the Joint Industry Board protesting the threatened hiring as violative of the priority-of-employment provision in the collective bargaining agreement, and it requested an arbitration hearing.
On April 30 Gonzalez, Rodriguez, Allman and Borges reported for work to Astrove's foreman at the Bronx Terminal Market job. Gonzalez and Rodriguez were told to change into work clothes, went to the change shanty to do so and, as they were changing, the business agent of Local 2 called the plumbers out on strike on the stated ground of an unsanitary work condition that had been under discussion for some weeks. Allman and Borges arrived a little later and were told by Astrove's foreman that there would be no work that day. The sanitation controversy was settled a few minutes after ten on the morning the strike was called, but the plumbers did not return to the job, no work was done that day, and the four men were not hired and were not paid.
While there was in fact a pending controversy over sanitary conditions, the members of Local 2 in the change shanty knew that Gonzalez, Rodriguez, Allman and Borges were not union men, one of the plumbers characterized the ascription of the walkout to the unsanitary condition as "baloney," and, later in the morning, the Local 2 business agent told Gonzalez that if he was hired by Astrove for the project "we are going to strike this project."
On the following morning, May 1, the four men again reported to the Astrove foreman and were told to go to the change shanty. Rodriguez, Allman and Borges went into the shanty, and there the Local 2 job steward asked them for their union welfare numbers and, when they could not furnish such numbers, told them, "We are not going to work with you here today, because nobody without a number can work in here." The three left the shanty and, with Gonzalez, went back to the Astrove foreman to fill out W-2 forms. Then all four started with the other plumbers toward the job site. One of the plumbers, in the presence of the Local 2 job steward, stopped them, and asked them if they had union membership books. They answered, "No." The job steward then called out to other men to come back, saying, "We don't work with non-union people." Others took up the cry, and all walked out. The Astrove foreman told Gonzalez and the other three that he could not do the work with only the four men; they were not hired or paid, and no work was done that day.
For two weeks, Astrove's work on the project was stopped. Astrove requested Local 2 to supply men for the job, and the President of Local 2 refused to do so until the pending arbitration had been heard and decided. Gonzalez and the other three men reported for work each morning, and they remained until Astrove's foreman advised them ...