(dissenting).
I respectfully dissent.
Newsom and Criswell had the right, under § 7 of the National Labor Relations Act, 29 U.S.C. § 151 et seq., to engage in concerted activities for the purpose of inducing Mason-Rust to employ blacks as carpenters. N. L. R. B. v. Tanner Motor Livery, Ltd., 349 F.2d 1 (9th Cir. 1965), on second appeal, 419 F.2d 216 (9th Cir. 1970); United Packinghouse, Food & Allied Workers Int. Union v. N. L. R. B., 135 U.S.App.D.C. 111, 416 F.2d 1126, cert. denied, Farmers’ Cooperative Compress v. United Packinghouse, Food and Allied Workers Int. Union, 396 U.S. 903, 90 S.Ct. 216, 24 L.Ed.2d 179 (1969). This right, under the circumstances of this case, was not limited by § 9 of the Act. There is no evidence that Mason-Rust and the union had any agreement permitting the union to take part in the hiring process. Absent such an agreement, Mason-Rust must be held to have had the final responsibility to hire. See, § 8(f) of the Act.
There was substantial evidence to support the Board’s finding that Newsom and Criswell were not hired because of their efforts to gain employment with Mason-Rust. Newsom, with some help from Criswell, vigorously pressed his demand that Mason-Rust employ black carpenters. Initially, they were given the “runaround” by Mason-Rust and the union, with each attempting to fix the responsibility for hiring on the other. They pressed their demands so vigorously, however, that Mason-Rust eventually decided to hire some black carpenters. Instead of hiring Newsom and Criswell, however, it hired two other blacks who had not participated in the effort to require Mason-Rust to employ black carpenters. On the basis of these facts, the Board was clearly correct in requiring Mason-Rust to justify its failure to hire Newsom and Criswell, and in finding that Mason-Rust had failed to sustain this burden. The inference drawn by the Board that Mason-Rust’s failure to hire Newsom and Criswell was because of their concerted activities was appropriate. See, Mead and Mount Construction Co. v. N. L. R. B., 411 F.2d 1154 (8th Cir. 1969). The record does indicate that Newsom was loud and perhaps even abusive on occasion; but this conduct occurred only after it was apparent that both Mason-Rust and the union were doing their best to avoid the employment of blacks as carpenters. Furthermore, the record shows that Criswell was a model of decorum, was qualified and was a member of the union, yet he too was not hired.
I would grant enforcement.