(concurring).
I think that the case for vacating the Board’s dismissal of the petitioners’ complaint is stronger than the majority opinion makes it.
Specifically, the majority concede that the challenged provision of the collective bargaining agreement requiring that subcontractors become employees of the carriers and thus members of the union serves the legitimate function of providing significant added protection to the bargaining unit. In my view, that concession is unwarranted.
Article 30(b) of the City Cartage Agreement and Article 33(b) of the Road Agreement provide that “no work or services presently performed or hereafter assigned to the collective bargaining unit will be subcontracted”. The majority read this clause as limited to the “volume” of work now performed by the bargaining unit. I think it is more reasonably read as protecting every type of work performed by the bargaining unit. So read, the clause precludes the employer from using either a diminution of the work force, or his refusal to hire needed additional men as work increases, as an excuse for the subcontracting of work. Thus, it seems to me that the only significant objective of the challenged requirement is the application of pressure on third persons, subcontractors, to accede to union demands.
Except in this one particular, I agree with the reasoning of the majority. Of course, I agree that the Board’s order be vacated.