TWENTY-SIXTH ANNUAL REPORT - National Labor Relations Board

Miscellaneous Litigation 213
diction which plaintiff sought to challenge Accordingly, the court of
appeals reversed the district court's order 1° requiring the Board to
assert jurisdiction over proceedings involving plaintiff Fitch and
directed the lower court to dismiss the complaint
2. The Board's Contract-Bar Rules
a Effect of "Hot Cargo" Clause
In Local 1546, Unsted Brotherhood of Carpenters v Vsncent,u
plaintiff union, party to a collective-bargaining contract, sought to
enjoin the holding of a representation election on the ground that the
Board's refusal to accord contract-bar status to the agreement because
it contained a "hot cargo" clause violated constitutional protections,
since the clause was not unlawful at the time the contract was executed
In addition to challenging the Board's retroactive application of this
new contract-bar rule, whereby contracts containing such clause would
not constitute a bar to an election, plauitiff alleged,that the rule itself
contravened section 8(e) of the act 1° by attaching to "hot cargo"
clauses a heavier sanction than Congress intended
The court of appeals, in affirming the district court's dismissal of the
c,omplaint,15 held that the Board's decision not to accord contract-bar
protection to agreements, existing as well as future, which contained
"hot cargo" clauses raised no constitutional issue because the grant
of such protection lay wholly in the discretionary authority of the
Board and not upon constitutional compulsion Moreover, upon an
analysis of section 8(e), the court rejected plaintiff's further contention
that the Board's determination constituted a violation of section
8(e), which, under the Supreme Court's decision in Leedom v Syne,"
could be redressed by a suit in a Federal district court Thus, as the
court of appeals held, "Leedom v Kyne would be precisely applicable
only if [section 8 (e) ] had said that the Board should not deprive
existing agreements, or existing and future agreements, of contractbar
protection solely because of hot-cargo clauses, this it did not do "- s
In these circumstances, the court concluded that plaintiff could prevail
only if Leedom v Syne were not limited to the case of a Board
representation determination "flouting a clear statutory command,"
but instead recognized district court jurisdiction "to enjoin represen-
10 Fite1& Sanitarium v Leedom, 47 LIMB! 2095 (D C D C)
" 286W 2d127 (CA 2)
But see Food Haulere, Inc • 136 NLRB No 36, where the Board reversed its former
contract bar iule as to "hot cargo" agreements
"This provision was added by the 1959 amendments and, in part, makes so-called "hot
cargo" clauses "unenforcible and void"
28 Local 1545, United Brotherhood of Carpenters v Vincent, 187 5' Sapp 921 (0 C
S N Y )
'358 US 184 (1958)
"28S 21 2d at 182