Compressed Air, Foundation, Caisson, Tunnel, Subway, Sewer, Cofferdam Construction Local Union

National Labor Relations Board - Board Decisions

Apr 23, 1951

93 N.L.R.B. 1646 (N.L.R.B. 1951)

1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the above findings of fact and upon the entire record in the case, the,
undersigned makes the following:
CONCLUSIONS OF LAW
1. Gamble-Skogmo, Inc., d/b/a Western Auto Supply Company, is engaged im
commerce within the meaning of Section 2 (6) and (7) of the Act.
2. Retail) Clerks International Association, Local 1179, AFL, and Retail
Delivery Drivers, Driver-Salesmen and Helpers, Local 588, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,.
AFL, are, respectively, labor organizations within the meaning of Section 2 (5)
of the Act.
3. On and since October 6, 1950, Retail Delivery Drivers, Driver-Salesmen
and Helpers, Local 588, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL, has been certified' by the Board
as the exclusive bargaining representative of employees of the Company in an,
appropriate unit, in accordance with the provisions of Section 9 of the Act.
4. From October 6, 1950, to on or about November 22, 1950, the Respondent
engaged in unfair labor practices within the meaning of Section 8 (b) (4) (C)
of the Act, by engaging in a strike and inducing and encouraging the employees
of the Company to engage in a strike and a concerted refusal in the course of
their employment to transport or otherwise handle work on goods, articles,
materials, commodities, and to perform services for the Company, an object
thereof being to force or require the Company to recognize or bargain with
Respondent as the representative of the employees in an appropriate unit, not-
withstanding that the Teamsters had been certified by the Board as the exclusive
representative of said employees under the provisions of Section 9 of the Act.
[Recommended Order omitted from publication in this volume.]
COMPRESSED AIR, FOUNDATION, CAISSON, TUNNEL, SUBWAY, SEWER,
COFFERDAM CONSTRUCTION LOCAL UNION No. 147 OF NEW YORK,,
NEW JERSEY STATES AND VICINITIES and JAMES P. KENNY . Case No-
2-CB-117. April ,°03,1951
Decision and Order
On August 31, 1950, Trial Examiner Irving Rogosin issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent, the Gen-
neral Counsel, and the charging party filed exceptions to the Inter-
mediate Report and supporting briefs. The Respondent has requested
oral argument before the Board. As the record and the exceptions
and briefs, in our opinion, adequately present the issues and the posi-
tions of the parties, this request is hereby denied.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
93 NLRB No. 274.
COMPRESSED AIR, ETC., LOCAL UNION NO. 147 1647
affirmed. The Board has considered the Intermediate Report, the
exceptions and briefs, and the entire record in the case, and finds merit
in certain of the Respondent's exceptions for the following reasons.
1. As found by the Trial Examiner, Kenny was discharged on
March 12, 1948, pursuant to a closed-shop contract between the Re-
spondent and the Employer, Mason & Hanger Co., Inc. This closed-
shop contract consisted of an agreement executed on February 14,
1936, by the Employer and the Respondent's predecessors, as supple-
mented by an agreement executed on October 24, 1945, by the Em-
ployer and the Respondent. Except for certain wage adjustments, no
changes were made in the contract between October 24, 1945, and the
time of Kenny's discharge.
On November 15, 1945, the Independent,' of which Kenny was an
officer, filed charges against the Employer with the New York State
Labor Relations Board, alleging discriminatory refusals to hire em-
ployees who were not members of the Respondent. In the proceedings
before the State Board, the Employer asserted that the foregoing
closed-shop contract was a defense to the In charges.
After holding informal conferences and receiving briefs, the State
Board refused to issue a complaint, and dismissed the Independent's
charges on February 16, 1946. In its letter of dismissal, the State
Board relied on the existence of the foregoing closed-shop contract,
thereby determining, at least administratively, that such contract was
a defense to the alleged discrimination.
At all times relevant hereto, the Employer's operations were a part
of the building and construction industry. In 1946, at the time of
the State Board proceeding, there was in existence an agreement be-
tween the National Labor Relations Board and the State Board,
reached in 1937, authorizing the State Board to exercise jurisdiction
over construction operations in New York State such as those
in which the Employer was engaged.2 Thus, not only was the
State Board the only agency to which the parties could then look for
a determination of the validity of their contract and their rights
'thereunder; it was also an agency which, in asserting jurisdiction
over the Employer for the purpose of making such a determination,
was acting within the scope of an agreement with the National Board.
On these facts, we conclude, contrary to the Trial Examiner, that
the validity under the Wagner Act of the 1945 closed-shop contract
herein issue should not at this time be opened to question by this
Board. Unlike the Trial Examiner, we find it unnecessary to decide
whether the State Board's action constituted such a final determina-
1 Officially known as Compressed Air, Free Air, Foundation, Tunnel, Caisson, Cylinder,
Subway, Cofferdam, Blaster, Rock Driller, Sewer Construction Workers' Union
2 For the text of this agreement, see Bethlehem Steel Company v. New York State Labor
Relations Board, 330 U. S. 767, 784, at seq.
1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of the validity of the contract as would be binding upon this
Board as a matter of law. That action was, at the very least, advice
to the parties that their closed-shop contract was valid, which advice
was given by a sister governmental agency acting in an area which
had been entrusted to it by this Board 3 We believe that the policies
of the Act and the public interest in stability in labor relations will
best be served by holding that, because of the 1937 agreement, the
parties were entitled to continue to regard the State Board's action
as determinative of the validity under the Wagner Act of their closed-
shop contract. Both equity and comity dictate this result. Because
we do not agree with our dissenting colleague that Section 10 (a)
of the amended Act compels the opposite conclusion, we hold that
this Board should not make its processes available to upset a determi-
nation made by a sister Board at a time when the latter had full
authority to act. Proper respect for that action leads us to conclude
that the contract remained a valid basis for the discharge When it oc-
curred, unless subsequent to the effective date of the amended Act
it had been renewed or extended, and therefore should be denied the
protection of Section 102.
2. We find (and to this extent Mr. Reynolds agrees) that the strike
settlement agreement of January 21, 1948, did not affect the dura-
tion of the contract or otherwise constitute a "renewal or extension"
of the contract within the meaning of Section 102 of the 1947 amend-
ments. We therefore agree with the Trial Examiner that the con-
tract was protected by Section 102 of the amended Act. We find,
therefore, that the closed-shop contract between the respondent and
the Employer, surviving as it did until 1948, constituted a valid
defense to Kenny's discharge. In so holding, we emphasize that our
determination to give effect to the action of the State Board is directed
only to the question of whether the contract in question would have
been available as a defense to a discharge under the Wagner Act, and
thus whether a discharge made in reliance on the State Board's
determination that the contract was valid, at a time when the 1945
contract had not been renewed or extended and was therefore still
protected by Section 102, should be regarded as unlawful. Holding
as we do that it should not, we shall dismiss the complaint in its
entirety.
Order
IT IS HEREBY ORDERED that the complaint herein be, and it hereby is,
dismissed.
3 Cf Armour Fertilizer Works, Inc, 46 NLRB 629, lVest Texas Utilities Company, Inc.,
85 NLRB 1396 , where the Board deemed itself bound by specific advice or rulings of
certain of its agents.
COMPRESSED AIR, ETC., LOCAL UNION NO. 147 1649
MEMBER REYNOLDS, dissenting :
I cannot agree with my colleagues that this Board should not now
question the validity under the Wagner Act of the closed-shop contract
between the Employer and the Respondent. Whatever effect this
Board might have given to the State Board's action if Kenny's dis-
charge had occurred while the cession agreement was still operative,
the enactment of the amended Act, which became effective on August
22, 1947, invalidated the cession agreement as of that time 4 The
Respondent was thereby put on notice that any action which it might
thereafter take to enforce its closed-shop contract was'no longer sub-
ject to the State act but to the National Act with its'-m'ore stringent
provisions regarding union-security agreements. As the Respondent
procured Kenny's discharge after the cession agreement was invali-
dated, I would hold that neither that agreement nor the State Board's
action should preclude this Board, as a matter of policy, from prds-
ently considering the validity under the Wagner Act of that contract.
In holding otherwise, the majority in lny opinion is continuing to give
effect to the cession agreement and is thereby, in the face of a con-
trary congressional mandate, in effect ceding its present authority to
a State whose act is inconsistent with the provisions of the National
Act.
MEMBER STYLES took no part in the consideration of the above Deci-
sion and Order.
Intermediate Report and Recommended Order
Mr. Vincent M. Rotolo, for the General Counsel.
Boudin, Collin cG Glickstein, by Mr. Hyman N..Glickstein, of New York, N. Y.,
for the Respondent.
Mr. Sidney O. Raphael, of New York, N. Y., for the charging party.
STATEMENT OF THE CASE
This, proceeding is based on a complaint, issued October 3,1949, by the Regional
Director for the Second Region (New York, New York) on behalf of the General
Counsel of the National Labor Relations Board, herein called the General
Counsel' and the Board, respectively, against Compressed Air, Foundation,
Caisson, Tunnel, Subway, Sewer, Cofferdam Construction Local Union No.
147 of New York, New Jersey States and Vicinities, herein called the Respondent,
the Union, or Local 147. The complaint is based upon a charge filed by James
P. Kenny, an individual, on September 1, 1948; and duly served on the Respond-
ent. The complaint alleges that the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section 8 (b) (1) (A) and
8 (b) (2), and Section 2 (6) and (7) of the National Labor Relations Act (49
Stat. 449, as amended, 61 Stat. 136), herein called the Act or the amended Act,
4 The proviso to Section 10 (a) of the amended Act prohibits the cession of jurisdiction
to a State when, as in the case of New York, the provisions of the State act are incon-
sistent with those of the National Act.
1 Unless otherwise stated or required by the context, reference to the General Counsel
is to his representative at the hearing.
943732-51-105
1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the context may require . Copies of the charge , the complaint , notice of hear-
ing thereon , and orders of postponement were duly served upon the Respondent,
the charging party, and Mason & Hanger Co., Inc.
More specifically , the complaimt alleges, in substance , that on or about March
12, 1948, the Respondent , by its officers , agents, and representatives , induced or
required Mason & Hanger Co ., Inc., an employer , to comply with the terms of
certain agreements with the Respondent , dated October 24, 1945, and caused the
said company to discharge , and regard ineligible for further employment with
said company , an employee , James P. Kenny, because he had previously engaged
with other employees of the company in "rival union " or other concerted activi-
ties ; that by said conduct the Respondent has caused said employer to discrimi-
nate against an employee with respect to whom membership in said organization
has been denied on grounds other than his failure to tender the periodic dues
and initiation fees uniformly required as a condition of acquiring membership;
and that by the foregoing conduct the Respondent has restrained and coerced
said James P. Kenny in the exercise of rights guaranteed by Section 7 of the Act,
in violation of Section 8 (b) (2) and 8 (b) (1) (A).
The Respondent 's answer duly filed denies generally the commission of unfair
labor practices , and affirmatively avers ( 1) that employment was denied Kenny
by Mason & Hanger Co., Inc., on its own initiative and not at the behest of the
Respondent , in accordance with a collective bargaining agreement between the
said Mason & Hanger Co , Inc. and the Respondent existing before the enact-
ment of the amended Act , which agreement continued in full force and effect at
all times material ; ( 2) that membership in the Respondent was denied Kenny
because he had engaged in unlawful activities in violation of its constitution and
the law, and held to be illegal by the courts of the State of New York ; and (3)
that since none of the acts alleged in the complaint constituted unfair labor
practices before the enactment of the amended Act, they cannot now furnish the
basis of a complaint or confer jurisdiction over the subject matter upon the
Board. For all these reasons the Respondent prays that the complaint be dis-
missed. By amendment to its answer before the close of the hearing, the Re-
spondent asserts as a further ground of defense that the complaint is barred by
the provisions of Section 10 (b).
Pursuant to notice , a hearing was held between April 17 and April 26, 1950,
inclusive , at New York , New York, before Irving Rogosin , the undersigned Trial
Examiner, duly designated by the Chief Trial Examiner . The General Counsel,
the Respondent , and the charging party were represented by counsel and par-
ticipated in the hearing . All parties were afforded full opportunity to be heard,
to examine and cross -examine witnesses , and to introduce evidence bearing upon
the issues . At the outset of the hearing the Respondent moved to dismiss the
complaint on the ground of insufficiency of the complaint both in fact and in law.
The motion was denied with leave to renew. Motion by the General Counsel at
the conclusion of the hearing to conform the complaint to the proof with respect
to formal matters not affecting the substantive issues was granted without ob-
jection . Thereupon , counsel for the General Counsel and for the Respondent
availed themselves of the opportunity afforded all parties to argue orally upon
the record . Advised of their right to file proposed findings of fact and conclu-
sions of law, as well as briefs, the General Counsel and the Respondent filed
briefs with the undersigned on July 10, 1950. A brief on behalf of the charging
party, received on July 12, 1950, 2 days after the expiration of the last of several
extensions of time for filing briefs , has not been considered. Upon the entire
record in the case and from his observation of the witnesses, the undersigned
makes the following:
COMPRESSED AIR, ETC., LOCAL UNION NO. 147
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
1651
Mason & Hanger Co., Inc., a West Virginia corporation, herein called the Com-
pany, maintaining offices in New York, New York, has for many years been
engaged in the business of constructing highways, subways, tunnels, sewers,
dams, aqueducts, and ordnance and other plants for the U. S. Government and
its instrumentalities, in various States of the United States, including the States
of New York, New Jersey, Massachusetts, Pennsylvania, Virginia, Kentucky,
Illinois, and Wisconsin. During the 10-year period from 1939 to 1949, in which
the Company engaged in these projects, it purchased construction materials,
supplies, and equipment aggregating in excess of $180,000,000, of which more than
$52,000,000 in value were purchased and transported to the construction sites in
interstate commerce from various States other than those in which the projects
were situated.
In connection with the Brooklyn-Battery Tunnel project, involved in this pro-
ceeding, the Company purchased, and caused to be transported to the construc-
tion site, materials, including iron, structural steel, timber, lumber, mason, and
other supplies and equipment aggregating in excess of $5,000,000, of which
more than $4,500,000 in value were transported and shipped to the site in inter-
state commerce from various States of the United States other than the State
of New York. The Respondent, while conceding, as the undersigned finds, that
the operations of the Company affect commerce within the meaning of the Act,
contends that the Board is estopped, for reasons discussed hereinafter, from
asserting jurisdiction.
II. THE ORGANIZATION INVOLVED
Compressed Air, Foundation, Caisson, Tunnel, Subway, Sewer, Cofferdam
Construction Local Union No. 147 of New York, New Jersey States and Vicinities,
affiliated with the International Hod Carriers, Building and Common Laborers'
Union of America, of the American Federation of Labor, is a labor organization
admitting to membership employees of the Company.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
1. Introduction
In September 1941, the New York City Tunnel Authority, later succeeded by
the Triborough Bridge & Tunnel Authority, awarded the Company, as success-
ful bidder, a contract for the construction of a portion of a twin bore vehicular,
tunnel, under the navigable portions of New York Bay and the East River, de-
signed to connect the lower end of Manhattan Island, commonly known as the
Battery, with Brooklyn. The entire undertaking has been referred to as the
Brooklyn-Battery Tunnel project. Under its contract, identified as Contract
BBT-0, the Company undertook to construct the portion of the tunnel between
the Battery and Governor's Island. A contract for the construction of the
opposite end of the tunnel from Brooklyn to Governor's Island, where the sec-
tions were to unite, was awarded the George H. Flinn Corporation, another
contractor.
The Company began work on the,project soon afterward, continuing until
February 12, 1943, when operations were suspended on order of the War Pro-
duction Board. In September 1945, resumption of the project was authorized.
1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Except for sporadic work stoppages , and a strike over a wage dispute lasting
from November 3, 1947, to January 21 , 1948, work continued until the tunnel
was completed on November 17, 1949.
2. Collective bargaining history
Collective bargaining relations between the Company and the Respondent had
their origin in an agreement negotiated in February 1936, long before the award
of the contract for the construction of the Brooklyn -Battery Tunnel. Negotiations
between the labor committee of The General Contractors Association , comprised
of contractors , including the Company , engaged in the heavy construction in-
dustry in the New York Metropolitan Area, and a committee of trade unions in
the industry , culminated in an agreement , dated February 14, 1936. This "basic
agreement ," as it came to be known , was signed by the Company , George H.
Flinn Corporation , and other contractors , and by Locals Nos. 45, 102 , 250, 266,
and 731, affiliated with International Hod Carriers ', Building and Common Labor-
ers' Union of America , herein called the Hod Carriers or the International, and
approved and endorsed by the signature of an international representative. The
agreement undertook to establish rates of pay , wages, hours of employment, and
other conditions of employment in "Heavy Construction and Railroad Contract-
ing Work," including by definition , projects of the type here involved , within the
area of the five Boroughs of the City of New York. -
By the terms of this agreement , the contractors agreed to employ "during the
life of this Agreement , only such workmen as are members in good standing of
the INTERNATIONAL UNION, who are members of the Local'Unions compris-
ing the parties of the second part , under the terms , conditions , and rates of
wages hereinafter provided in this Agreement, which terms , conditions, and
rates of wages have been arrived at, and determined through bona fide collective
bargaining , between all the parties to this Agreement."
The agreement permitted members of any of the locals named to perform, and
the contractors to hire such members to perform, any or all work covered by the
agreement without regard to membership in any particular local.
With respect to its duration , the agreement provided :
This Agreement shall remain in force and effect from the date hereof up to
and including April 30th, 1937 , and shall also remain in effect for the full
duration of any contracts entered into by the parties of the first part prior
to April 30 , 1937, and shall continue from year to year thereafter unless
notice to terminate the same shall be given by either party within ninety (90)
days prior to its expiration.
On August 21, 1937, the agreement was extended to April 30, 1939, subject to
wage adjustments . In September 1941, when the Company was awarded Contract
BBT-6 for the construction of part of the Brooklyn -Battery Tunnel , the "basic
agreement" was still in force by reason of the automatic renewal provision.
Under this agreement operations continued until February 12, 1943, when halted
by order of the War Production Board.
With resumption of the project authorized in September 1945, the Company
and the Respondent , Local 147 , as successor to Locals 45 and 102, executed a
supplement to the "basic agreement ," dated October 24, 1945, continuing the
"basic agreement" in full force and effect , except as modified by the supplement,
"until completion of Contract BBT-6," when both the "basic agreement" and
supplement , insofar as applicable to Contract BBT-6, were to terminate . Simul-
taneously with the exception of this supplement , the Respondent also delivered
to the Company a "letter of understanding ," modifying the closed -shop provisions
COMPRESSED AIR, ETC., LOCAL UNION NO. 147 1653
of the contracts. The pertinent provisions of these agreements will be discussed
later.
On April 30, 1946, the Company terminated the "basic agreement," pursuant
to written notice to the Respondent on January 24, 1946, except insofar as the
agreement and supplement applied to the Brooklyn-Battery Tunnel project.
The supplement expired, in accordance with its terms, with the completion of
the project on November 17,1949.
In addition to the closed-shop provisions contained in the "basic agreement,"
the supplement provided :
The Employer agrees to hire and to retain in its employ for all classifi-
cations of work covered by this agreement (including the positions of shift
superintendents, grout superintendents, hydraulic superintendents, walking
bosses and foremen) only those persons who are and who remain members
of the Union in good standing.
3. The formation of Local 147; the International's attempt to deprive it of its
, jurisdiction ; subsequent events
In February 1938, Locals 45 and 102, which had been parties to the "basic
agreement," amalgamated to form Local 147, the Respondent, which was
chartered by the International on March 1, 1938. By this amalgamation, Local
147 acquired the jurisdiction formerly exercised by its preaecessors, and, in
accordance with a provision in the "basic agreement," succeeded to their rights
and obligations under that agreement.
On January 6, 1942, after a trial before the general executive board authorized
at its convention held in September 1941, the International revoked the charter
of Local 147. The International then organized a new local, Local 8,' to succeed
Local 147, and, on January 10,1942, issued it a charter.
On January 14, 1942, International President Joseph V. Moreschi notified the
General Contractors Association, by letter, of the action taken by the Inter-
national in revoking the charter of Local 147 and establishing Local 8, and
requested that the Association and its members grant recognition to Local 8
"in all of the jurisdiction outlined in its title."
Soon afterward, President Harry B. Talbot and Business Agent James Kenny,'
of Local 8, called on Mason & Hanger Co., Inc., in an effort to obtain recognition
as the bargaining representative of sandhogs on the Brooklyn-Battery Tunnel
project, on which work had only recently begun. Representatives of Local 147,
too, demanded recognition on behalf of its members. The Company refused
to sign a proposed agreement which Local 8 had submitted, but did hire members
of that Local exclusively for work on the tunnel, and continued to do so until
work ceased in February 1943, on orders of the War Production Board.
According to Vice-President Miles I. Kilimer, the Company, concerned chiefly
with progressing with the construction of the tunnel, hired both union and non-
union men during this period. It is clear, however, from Kenny's undisputed
testimony, that members of Local 147 were denied employment on the project at
this time.
Meanwhile, on January 12, 1942, Local 147 filed charges with the Regional Office
of the Board against Mason & Hanger Co., Inc., and George H. Flinn Corporation,
alleging that they had violated Section 8 (1), (3), and (5) of the original Act, by
2 Officially designated as Compressed Air, Caisson, Cofferdam, Tunnel, Subway and
Sewer Construction in the Greater City of New York and Compressed Air in the State
of New Jersey, Local Union No. 8.
3 The charging party herein.
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminating against its members in employment on the Brooklyn-Battery
Tunnel, and by refusing to bargain with the Union as representative of the sand-
hogs. The same day, the Union notified the contractors by telegram of the filing
of the charges, and warned that it would hold them liable for any loss of employ-
ment and loss of pay sustained by its members, in the event the contractors dealt
with any other bargaining representative.
Opposing these charges, the International's general counsel wrote the Regional
Director, advising that Local 147 had ceased to exist as an affiliate of the Inter-
national, had been succeeded by Local 8, and that the existing closed-shop agree-
ments with locals affiliated with the International precluded employment of
members of unions not affiliated with that organization.
After a conference at the Regional Office, the Director, on January 28, 1942,
notified the parties that after careful investigation "further proceedings do not
seem warranted," and that she was, therefore, refusing to issue a complaint.
The same day, Local 147 filed similar charges with the New York State Labor
Relations Board. Representations similar to those made to the Regional Office
of the Board were made by the International to the State Board. A conference
was held at its offices and, on February 6, 1942, the State Board notified Local 147
that, since the controversy appeared to involve a jurisdictional dispute between
labor organizations affiliated with the same parent body, which the State statute
precluded that Board from entertaining, the charges were being dismissed
without prejudice to reconsideration in the event the courts resolved the issue.
At this stage, Local 147 obtained a preliminary injunction in the Supreme
Court of the State of New York against International President Moreschi, Vice-
President James Bove, and other defendants, including Local 8, Kenny, and
other local officers, restraining those defendants from interfering with the juris-
diction of Local 147 or the performance of its contracts. On April 28, 1942, the
Court issued its decision declaring the action of the International in revoking
Local 147's charter, and in granting Local 8 a charter, null and void, and enjoin-
ing the defendants from interfering with the affairs of Local 147 or its contracts.4
The injunction proceedings were not affirmed by the Court of Appeals until July
1943. Meantime, work on the project had been halted.
Soon afterward, some 800 former members of Local 8, under the leadership
of Talbot and Kenny, formed a new organization, referred to as the Independent s
The Independent, of which Kenny became financial secretary-treasurer and
business agent, contended with Local 147 for work on projects then under con-
struction in the New York City area. Although the Independent succeeded in
obtaining work from the Company for some of its members on another project
then under construction in New Jersey, it was unable to procure work at the
Brooklyn-Battery Tunnel project.
In September 1945, when the project was resumed, Kenny and Talbot, as
representatives of the Independent, attempted to obtain exclusive recognition
on behalf of that union from both contractors, and requested them to execute
collective bargaining agreements. According to Kenny's undisputed testimony,
the contractors, although indicating willingness to sign an agreement and to
hire members of the Independent only, were in doubt as to the status of Local
147, and, therefore, unwilling to assume the risk of recognizing the Independent.
Efforts by the contractors to effect some amicable solution to the jurisdictional
dispute between the Independent and Local 147 proved unavailing. Ultimately,
* Moore v. Moreschi , 291 N. Y. 81, aff'd with modifications not here material, 265 App.
Div. 989; 179 Misc. 475.
'Officially known as Compressed Air, Free Air , Foundation , Tunnel, Caisson , Cylinder,
Subway, Cofferdam , Blaster, Rock Driller, Sewer Construction Workers' Union.
COMPRESSED AIR, ETC., LOCAL UNION NO. 147 1655
however, upon advice of its counsel, the Company decided to recognize Local 147
as exclusive bargaining representative of the sandhogs, and on October 24, 1945,
entered into the supplement to the "basic agreement" with Local 147, specifically
covering the Brooklyn-Battery Tunnel.
Next day, Kenny filed a petition for certification on behalf of the Independent
with the New York Statq Labor Relations Board. On November 15, 1945, Kenny
also filed unfair labor practice charges against the Company with the State
Board, alleging discrimination in employment on the Brooklyn-Battery Tunnel
project against members of the Independent because of their nonmembership in
Local 147. After several conferences at the offices of the State Board, attended
by all the parties in interest and their counsel, at which the "basic agreement"
and supplement were submitted, the State Board, on February 16, 1946, notified
the parties that both the petition and charge had been dismissed. Soon after-
ward, the Independent was dissolved.
From October 24, 1945, when the supplemental agreement was executed, until
the completion of the project, the Company continued to recognize Local 147
as the exclusive bargaining representative of the sandhog employees at the
Brooklyn-Battery Tunnel project.
At the time of the execution of the supplement, the Company advised the
Union that it wished to hire, for the operation in "the free air sections of the
rock tunnels," nonunion men previously employed on other company projects.
These men were needed, according to the Company, because of their special skills
and experience in the newly developed techniques of rock tunneling and excava-
tion by machine, not possessed by members of the Union. The Union acceded
to this request, and, simultaneously with the execution of the supplement, de-
livered to the Company 'a "letter of understanding" modifying the closed-shop
requirements. Under this arrangement, the Company was permitted to hire,
for work "in the free air sections of the rock tunnels," shift superintendents,
foremen, and members of heading gangs who were not members of the Union,
provided they were not "antagonistic to Local 147," and provided they were
qualified, made immediate application for membership in the Union, and re-
mained members in good standing, the Union agreeing to admit such persons
upon application.
On October 31, 1946, the supplemental agreement was modified to adjust wage
rates in stated classifications pursuant to prior approval by the then existing
Wage Adjustment Board. In all other respects, the supplement, together with
the letter of understanding, remained in full force and effect.
On about November 3, 1947, members of Local 147, employed on the Brooklyn-
Battery Tunnel, engaged in a work stoppage which continued until late in
January 1948. The strike was settled, and, on January 21, 1948, the Union
addressed identical letters to both contractors. agreeing to complete work on
the Brooklyn-Battery Tunnel under the terms and conditions of the agreements
dated October 24, 1945,8 subject to a wage adjustment to be determined between
members of the General Contractors Association and the Heavy Construction
Trades Unions, including Local 147, at which wages the tunnel was to be com-
pleted. The General Counsel's contention that the letter of January 21, 1948,
constituted a new agreement or a "renewal or extension" of the "basic agree-
ment" and the supplement, after the enactment of the amended Act, hence not
protected by Section 102, is referred to later.
When the project was resumed in October 1945, work on the Battery side was
continued as a "free air rock" operation, the method which had been employed
6 Erroneously referred to as dated October 25, 1945.
X 656 DECISIONS ONE NATIONAL LABOR RELATIONS BOARD
at the outset . Without attempting to delineate the precise engineering tech-
niques involved, this operation consisted generally of excavating the tunnel
through rock in normal air, without the use of compressed air, and without the
protection of a shield. Early in March 1947, however, due to changes in the
geological formation of the river bed' from rock to sand and mud, the operation
was converted from a "free air rock" to a shield-driven operation. In the shield-
driven operation , sandhogs worked under the protection of a heavy steel shell,
larger than the diameter of the tunnel , known as a shield, fortified by compressed
air. After the necessary preliminary work was performed, huge cast iron rings
were erected in segments inside the circumference of the tunnel to support the
roof. The shield-driven operation required gangs of 35 men ( as compared with
gangs of 20 in the free air rock operation), of which, by March 1, 1948, 15 com-
prised iron men who erected the iron rings. Since the skills and experience re-
quired in the shield-driven operation were substantially different from those in
the free air rock, the Company laid off the free air rock gangs and replaced
them with compressed air shield operators.
On the Brooklyn side of the project, under construction by the George H.
Flinn Corporation, the situation was practically reversed. In the early stages
of construction , tunnel operations there had been almost exclusively shield-
driven. At about the time of the changeover on the Battery side, operations on
the Brooklyn side had been changed to the free air rock type. This fortuitous
circumstance made it possible for free air rock operators , who had been laid off
on the Battery side, to obtain employment on the Brooklyn side, while com-
pressed air shield operators laid off at the Brooklyn project were enabled to
obtain employment at the Battery side.
This was the situation which existed when James Kenny applied for a job
at the Battery side of the project on the night of March 10, 1948.
4. The discharge of James P. Kenny
James P. Kenny , also known as James Kenny , Jr., had been employed by
Mason & Hanger Co., Inc., as far back as 1928 or 1929. When he left the employ
of the Company in the fall of 1929, he was a member of Local 63, an affiliate of
the Hod Carriers. From then until 1941, he was a member successively of Locals
67, 45, and 102 , all affiliated with the same parent organization , and, with the
amalgamation of Locals 45 and 102 into Local 147, a member of that organiza-
tion. He had served as recording secretary and business agent of Local 45,
financial secretary-treasurer of Local 102 , and recording secretary of Local 147.
He had held some office in that Local from the date it was chartered until July
1940, when he was defeated for the office of delegate from New Jersey.
Kenny attended the International convention in 1941, when charges were
preferred against Local 147 . Later, he assisted in the preparation and prosecu-
tion of the trial before the general executive board which resulted in the revoca-
tion of Local 147's charter. When Local 8 was organized to supplant Local 147,
Kenny became a charter member, and was designated by International President
Moreschi as an officer of that Local . His activities on behalf of Local 8, and,
later the Independent ; his attempts to obtain recognition on their behalf as
bargaining representative , in opposition to Local 147 ; the proceedings which
he instituted before this Board and the State Board ; and the injunction pro-
ceedings , in which he was a party defendant , resulting in the restoration of
Local 147 's charter and the voiding of Local 8's charter , have already been
mentioned.
Early in 1947, Kenny applied for membership in Local 147 . The record does
not disclose whether his application was accompanied by the initiation fees or
COMPRESSED AIR, ETC., LOCAL UNION NO. 147 1657
dues, but his application was rejected by the general membership at a regular
meeting, presumably because of his activities in opposition to the Union.
Shortly before midnight , March 10, 1948, Kenny applied to Charles W. Hodson,
foreman of the heading gang, for a job . Although admittedly aware that Kenny
was not then a member of the Union, Hodson asked him whether he had a union
book. Kenny said that he did not. Nevertheless , Hodson told him that he lacked
a full gang , issued him a hiring slip , and told him to change his clothes and go
down into the tunnel. Kenny worked that shift, March 10, 1948, from midnight
to 8 a. m. March 11, and the same shift the next day, ending 8 a. m . March 12.
On March 11, 1948, Kenny wrote the Union, applying for membership, and
enclosing a postal money order for $53, covering the initiation fee of $50 and
monthly dues of $3.
That morning at about 7 o'clock, Business Agent Brian Feeney and President
Owen Kelly of Local 147 met at the Brooklyn side of the tunnel project, where
they remained on routine business until after the change of shifts at 8 o'clock.
At about 8: 15 or 8: 30, they left for the Battery side of the project, arriving at
about 9 o'clock. They were soon confronted by union members who complained
that nonunion men were working on the project while union men were unemployed.
Specifically, they reported that Kenny had been hired, and demanded whether he
had been admitted to membership in the Union. The union officials sought out
General Superintendent John A. Ury and Job Manager Allen B. Lincoln, and, after
verifying this report, requested a conference with the Company's managing offi-
cials. Lincoln reached Chief Engineer Howard L. King, and informed him that
the union officials wanted to discuss the hiring of Kenny the night before. King
instructed Lincoln to have Ury join them in the office King and Lincoln met
Kelly and Feeney in the Company's field office before Ury arrived. Ury joined
them soon afterward. The conference lasted until about 10: 30. The testimony
is in sharp conflict as to the conversation that ensued.
According to Chief Engineer King, the discussion was opened by Kelly or
Feeney with the remart, "I guess you know what we are here for." King
replied, "I can imagine ." Both Kelly and Feeney then engaged in the discus-
sion which followed, stating, in substance , that Kenny was not a member of the
Union, that he was not acceptable as a union member, and that under the
agreement with the Company, he would have to be discharged . General Super-
intendent Ury went even farther in his testimony. Substantially corroborating
King's testimony, he added that the union officials, without being able to specify
which one, stated that Kenny was "antagonistic" to the Union , and that they
wanted him discharged immediately.?
'r Mention by the union representatives of Kenny's antagonism toward the Union
doubtless referred to the provision in the "letter of understanding " of October 24, 1945,
which permitted the Company to hire nonunion free air rock operators , provided they
were not "antagonistic" to the Union . Both the Company and the union representatives
testified at the hearing that it was not intended that this understanding should apply
after the completion of the free air rock operations , and that the closed-shop provisions of
the supplemental agreement of the same date were to apply thereafter . Although it ap-
pears , therefore, that the exemption from the closed -shop provisions , pursuant to the "letter
of understanding ," would not have applied to Kenny, who was hired on the shield -driven
operation , this may not have occurred to the union representatives at the time. Ury also
testified , at one point , that the union representatives had said that "there would be trouble
if [Kenny] was not removed " Although this remark might be construed as a threat
against the Company if it did not comply with their request, other testimony by Ury
indicated that what they had said was that Kenny "was going to cause trouble for" the
Union In view of this ambiguity , the undersigned regards the evidence insufficient to
support a finding that the Union threatened the Company with reprisal in the event it
failed to accede to the demand for Kenny ' s discharge.
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Kelly and Feeney, however, at no time during the conference did
they request that Kenny be discharged. They testified, in substance, that before
the discussion even opened, Ury told them that Kenny had already been dis-
charged earlier that morning at 8 o'clock (while the union officials were still
presumably at the Brooklyn site). Feeney testified that when he and Kelly
reached the office, Lincoln and King were there but that Ury had not yet
arrived. During the interval before Ury arrived, no mention was made about
Kenny. After Ury's arrival, there was some casual conversation about the
weather, and then Ury volunteered, "If you are here on account of Kenny, you
don't have to bother because I laid that man off. . . ." Feeney was uncertain
whether Ury had said he had laid Kenny off "this morning" or "last night," but
was definite that Ury had said, "He is already gone." Feeney testified further
than when they had first inquired of Ury earlier that morning whether Kenny
had been hired, Ury had admitted that he had been. Feeney admitted, however,
that neither Ury nor Lincoln then mentioned that Kenny had already been
discharged. Actually, Kenny was not discharged until he reported for work
on the midnight shift after the conference under discussion. It is, therefore,
utterly incredible that Ury would have told the union officials that he had already
discharged Kenny, unless he was deliberately attempting to deceive them. No
motive has been suggested, however, for Ury to have done so. On cross-examina-
tion, Feeney gave quite a different version of Ury's alleged statement. This
time, Feeney testified, Ury stated, "Gentlemen, if you are here on account of
Kenny . . . I've already left word for him to be fired." (Emphasis added.)
Kelly's testimony, too, is impaired by the statement made by him in an
affidavit which he gave a field examiner of the Board sometime before the
hearing. In this affidavit, Kelly reported Ury as having asked him whether
Kenny was. a member of the Union. When Kelly replied that he was not, Ury
told him, "All right, I'll leave word to lay him off." Although when confronted
with the statement, Kelly elected to rely on his testimony at the hearing, rather
than the statement in the affidavit, his veracity has been effectively impugned.
Moreover, the testimony of Feeney and Kelly, concerning the remarks attributed
to Ury, was not only unconvincing but implausible as well.
In the light of the more credible, persuasive, and mutually corroborative
testimony of both Ury and King, the undersigned rejects the testimony of
Kelly and Feeney regarding Ury's remarks and credits the testimony of Ury
and King. Ury was no longer employed by the Company at the time of the
hearing, and had no demonstrable interest in the controversy. King, though
still in the Company's employ, vigorously denied that Ury made the statement
attributed to him by Kelly and Feeney. No charge has been filed, and no
complaint issued against the Company. It is, therefore, difficult to discern any
motive King or Ury would have had for distorting or misstating the conversation
The undersigned, therefore, concludes, in accordance with the testimony of
King and Ury, that, on the occasion in question, the Respondent's President
Kelly and Business Agent Feeney stated, in substance, that they understood that
Kenny had been hired by the Company, that he was not a member of the Union,
that he was considered "antagonistic" to the Union, hence, not acceptable as a
member, and that the Company was obligated to discharge him under the
contract!
N " At the conclusion of Ury's direct examination, counsel for the Respondent moved to
defer cross-examination until he had had an opportunity to confer with the union officials
involved, who had been unable to be present during Ury's testimony. The motion was
granted, and the witness was excused subject to being recalled Later, however, counsel
for the Respondent voluntarily waived cross-examination of this witness. Job Manager
Lincoln, the only other person present at this meeting, died about a month before
the hearing.
COMPRESSED AIR, ETC., LOCAL UNION NO. 147 1659
Testifying that he regarded the Union entirely within its rights under the
contract, in demanding Kenny's discharge, Chief Engineer King instructed Job
Manager Lincoln to see that Kenny was laid off immediately, and, in King's
presence, Lincoln told Ury that Kenny "[would] have to go." Ury notified
the timekeeper to dismiss Kenny, and, when he next reported for work on the
midnight shift, the timekeeper handed him his pay envelope containing 2 days'
pay, and told him that Ury had fired him.
It should be noted that when the union officials demanded Kenny's discharge,
they were, on their own admission, unaware that he had only that day made
written application for membership in the Union. The eventual action on his
application was, thus, forecast long before it came up for consideration by the
Union. At a membership meeting of the Union on March 21, 1948, Kenny's
application was rejected, and 2 days later the Union notified him of the action
taken and returned his money order.
In about August 1948, some 5 or 6 months after his discharge, according to
Kenny, he again applied to the Company for work. He was told by Superin-
tendent Albert Mitchell that if he "got straightened out with the Union there
would be a job for him." On August 27, 194S, Kenny applied for membership,
offering to pay the initiation fees, but was told to await the action of the
executive board. When that board failed to reach agreement, he was advised
to withdraw his application. On September 19, 1949, he again made application.
Despite the fact that Local President Kelly signed his application as a sponsor,
and that the executive board ultimately recommended that his application be
accepted, the general membership, on November 28, 1949, overwhelmingly voted
to reject the recommendation, and he was again denied membership in the
Union. Notified of the action, Kenny made no further application.
Issues; Contentions; Conclusions
Underlying the Respondent's defense to the complaint is the contention that
Kenny was discharged pursuant to the provisions of valid closed-shop contracts
entered into and existing before the enactment of the amended Act, and, there-
fore, exempt from its proscription by virtue of Section 102 thereof s
The General Counsel concedes that if the closed-shop contracts were valid
when executed, Section 102 would render these contracts, and any discharge
thereunder, immune from attack. However, in addition to challenging the
validity of the contracts, on grounds presently discussed, he contends that the
contracts are not entitled to the protection of Section 102 in any event because
the "agreement[s] [were] renewed or extended subsequent [to the effective date
of the Act.]"
This contention is based on the proposition that the memorandum of January
21, 1948, settling the strike which had lasted since November 3, 1947, constituted
a "renewal or extension," after the effective date of the amended Act, of a pre-
existing closed-shop contract. The General Counsel contends that, by striking
9 "Sec. 102. No provision of this title shall be deemed to make an unfair labor practice
any act which was performed prior to the date of the enactment of this Act which did not
constitute an unfair labor practice prior thereto, and the provisions of section 8 (a) (3)
and section 8 (b) (2) of the National Labor Relations Act as amended by this title shall
not make an unfair labor practice the performance of any obligation under a collective
bargaining agreement entered into prior to the date of the enactment of this Act, or (in
the case of an agreement for a period of not more than one year) entered into on or after
such date of enactment, but prior to the effective date of this title, if the performance
of such obligation would not have constituted an unfair labor practice under section
8 (3) of the National Labor Relations Act prior to the effective date of this title , unless
such agreement was reviewed or extended subsequent thereto."
1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in violation of the no-strike provision of the October 24, 1945, supplement, the
Respondent not only committed a breach of the contract, but also effectively
repudiated the contract so that it ceased to exist. Although this contention
is academic, in view of the ultimate disposition of the basic issue, the under-
signed does not agree. Whatever rights may have accrued to the Company upon
the Union's breach, certainly no third person, not a party to the contract or his
privy (the General Counsel, here), may take advantage of the other party's
breach. In the instant case, the Company, though maintaining that the strike
was in violation of the contract, nevertheless negotiated a settlement of the
strike by reaffirming the contract, and continuing its existing terms, except as
modified by a wage increase, until completion of the project 10
Section 102, in this connection, denies exemption from the closed-shop pro-
hibition of the Act merely to contracts "renewed or extended" subsequent to the
effective date of the Act. The choice of words can hardly have been inadvertent.
The words cannot, therefore, be regarded as synonymous with the word "modi-
fied." The settlement agreement, here, did not renew or extend the term or
duration of the contract, which Congress obviously sought to prevent, but
modified it only to the extent of providing for a wage increase during the existing
term. The undersigned, therefore, finds, contrary to the General Counsel's con-
tention, that the settlement agreement did not constitute either a new contract
or a renewal or extension of a preexisting contract within the meaning of
Section 102.
It is, therefore, necessary to determine whether the "basic agreement" and
the supplement, both antedating the enactment of the amended Act, afford a
ground for defense to the complaint, by reference to the original Act.
Section S (3) of that Act provides, in pertinent part:
. . , nothing in this Act . . . shall preclude, an employer from making
an agreement with a labor organization (not established, maintained, or
assisted by any action defined in this Act as an unfair labor practice) to
require as a condition of employment, membership therein, if such labor
organization is the iepresentative of the employees as provided in Section 9
(a), in the appropriate collective bargaining unit covered by such agreement
when made. (Emphasis supplied.)
A prerequisite to the validity of such an agreement, therefore, is that the con-
tracting union shall, at the time of the execution of the agreement, be the
statutory representative of the employees in an appropriate unit. The most
cursory examination of the facts, here, establishes that it was not.
The "basic agreement," executed between various contractors in the heavy
construction industry, including the Company, and sandhog locals affiliated with
the Hod Carriers, was entered primarily in contemplation of construction con-
"The settlement agreement, in the form of a letter, dated January 21, 1948, addressed
by the Union to the Company and George H. Flinn Corporation, reads.
IT IS AGREED THAT
All work to be performed on the BROOKLYN-BATTERY TUNNEL, pursuant to the contracts
of Mason & Hanger Company, Inc. and of George H. Flinn Corporation with the
TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, shall be completed under the terms
and conditions contained in the agreements dated October 25, 1945 between LOCAL
UNION No. 147 and Mason & Hanger Company, Inc., and George H. Flinn Corporation,
as modified by wage increases since that date.
Effective upon resumption of work, a wage increase to the wage schedule, deter-
mined between Members of The General Contractors Association and the Heavy
Construction Trades including Local Union No. 147, will be granted to members of
Local Union No. 147 who will be employed on this work by Mason & Hanger Company,
Inc. and by George H. Flinn, at which rates all work under aforesaid contracts shall
be completed.
COMPRESSED AIR, ETC., LOCAL UNION NO. 147 1661
tracts which the contractors hoped to obtain in the future . The agreement was
intended to operate as a master contract , automatically renewable indefinitely, in
the absence of prest'ribed notice of termination . It provided for rates of pay,
wages, hours of employment , and other conditions of employment applicable to
such contracts as these contractors might acquire in the future . The record
is barren of any showing of the basis on which the contractors , including the
Company, recognized the Union as bargaining representative . That the con-
tracting unions had claimed exclusive jurisdiction over sandhog operations in
the greater New York area for more than 60 years , scarcely satisfies the require-
ments of the statute. Moreover , since the project involved in this proceeding
had not even come into existence at the time of the execution of the "basic
agreement ," it is abundantly clear, apart from any determination of the scope
of the appropriate unit, that the Union could not have been the representative
of the employees in an appropriate unit, as required by the proviso to Section
8 (3), at the time the "basin agreement" was executed.
With respect to the supplement , expressly covering the project here involved,
the record discloses that this agreement was signed , after a shutdown of more
than 2 years , in contemplation of, and before actual resumption of operations.
During the intervening period, the tunnel had become flooded, and before work
could be resumed it was necessary to pump the water out of the tunnel, and
make other necessary preparations . According to the undisputed testimony of
Vice-President Killmer, no sandhogs had been hired at the time of the execution
of the supplement . Only some 4 or 5 watchmen and maintenance men, under a
foreman, none of whom were members of the Union, and who had been em
ployed throughout the shutdown , were "on the job" when the supplement was
signed. Before actual construction could be begun , it was necessary , in addition
to evacuating the water from the tunnel , to inspect and insure the safety of
the tunnel roof and to prepare the "surface plant ." Some 25 men were engaged
in this preparatory work . Of this number, only some 5 or 6 , including a pump
man and his helper , were members of the Union . Actual tunnel operations-
the "driving of the tunnel"-were not begun , according to Killmer , until after
October 24, 1945.
With the signing of the supplement , and the "letter of understanding," the
Company began hiring sandhogs for the free rock operation , which lasted until
March 1947 . During this period, the average number of operating employees,
in all classifications , including sandhogs , was between 250 and 300, of
which from about two -thirds to three-quarters comprised sandhogs. Thus,
when the supplement was signed , there were in the employ of the Company
not more than 5 or 6 out of a complement of, at the very least, 165 sandhogs
later hired , who were members of the Union . Patently , the Union was not,
and could not have been , at the time the supplement was executed , the repre-
sentative of the employees in an appropriate unit, as required by the proviso
to Section 8 (3) of the original Act. It follows , therefore , and the undersigned
finds, that both the "basic agreement" and the supplement , relied on in defense
of the unfair labor practices herein, are not entitled to the protection of the
proviso to Section 8 (3), and afford no justification for the said practices.
In view of this determination , which the undersigned regards dispositive of
the crucial issue, it is unnecessary to decide whether, as urged by the General
Counsel , evidence , of the attempted extension of the closed -shop contracts to
include the compressed air shield employees , who were not hired until March
1947, in a combined unit with free air rock employees , without having afforded
the compressed air shield employees an opportunity to express a preference,
1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
furnishes an additional ground for holding the closed -shop contracts invalid."
Evidence was also adduced by the General Counsel in support of his contention
that, apart from the illegality of the contracts, the closed-shop provisions were
erroneously applied with regard to Kenny. This contention is based on evidence
of provisions in the contracts , as well as actual practice or "tacit understanding"
between the parties, whereby the Union permitted the Company to hire nonunion
men when union members were not immediately available for work. It is con-
tended that Kenny was hired in such a situation. The Union, while admitting
that some such arrangement existed at the time, strenuously denied that union
members were not available when Kenny was hired. For the reasons stated
above, the undersigned deems it equally unnecessary to resolve this conflict.
The Respondent 's contention that the requirements of the proviso to Section 8
(3) of the original Act, and the principles enunciated by the Board in construing
the proviso , should not be applied because contracts such as those here involved
are both customary and indispensable in the heavy construction industry, have
already been rejected by the Board's It is, similarly , no justification for violating
the Act that the contracts were executed because of economic exigencies "
The Respondent , although conceding that the operations involved in this con-
troversy affect commerce within the meaning of the original as well as the
amended Act, makes the contention that the Board is, in effect, estopped from
asserting jurisdiction over this controversy because it did not, under the original
Act, assert jurisdiction over construction projects , such as that here involved.
As the Board has already pointed out, "such abstention was an administrative
choice rather than a legal necessity , and does not estop our present jurisdiction.
Indeed, since 1947, under the amended Act, we have asserted jurisdiction over
substantial construction projects. . . ." 14 And, the Board there added, "The
fact that we did not choose to exercise jurisdiction over the construction industry
under the original Act, carries no implication that had we asserted jurisdiction,
we would not then have reached the same conclusion on an identical set of facts."
But, the Respondent urges, a more compelling reason exists for the Board to ab-
stain from asserting jurisdiction in this case.
It asserts that, not only did the Board voluntarily relinquish jurisdiction over
the construction industry, under the original Act, but it went further and, by
formal agreement, ceded this jurisdiction to the New York State Labor Relations
Board. This agency, the Respondent maintains, asserted jurisdiction over the
basic controversy with which we are concerned, and, according to the Respond-
ent, sustained the validity of the closed-shop agreements now under attack.
Reference is to the proceedings instituted, first, before our Board in 1942, and
soon afterward, and again in 1945, before the State Board. In 1942, the Re-
gional Director of our Board, after considering the charges informally, declined
11 See Graham Ship Repair Go, 63 NLRB 842; Albert Love Enterprises and Foote &
Davies, 66 NLRB 416, 422 ; Chicago Freight Car it Parts Co , 83 NLRB 1163. To the
extent that the Board may deem it necessary to deal with this contention, the record
discloses that, while compressed air shield operators were paid at a substantially higher
rate of pay , worked on a weekly rather than an hourly basis , were paid irrespective of
the actual number of hours worked , and worked for relatively short intervals due to the
necessity for operating in compressed air, there is not such a lack of community of interest
between these two categories of employees as to require separate units. It should be
noted that the "basic agreement " and the supplement covered both categories of employees.
and prescribed the rates of pay, hours of employment , and other terms and conditions
of work.
12 See Guy F. Atkinson Co., at al ., 90 NLRB 143 ; Daniel Hamm Drayage Company, Inc.,
84 NLRB 458 ; National Maritime Union of America , 78 NLRB 971.
13 Guy F. Atkinson Co., et al, supra.
34 Guy F. Atkinson Co., at al., supra. See also cases there cited.
COMPRESSED AIR, ETC., LOCAL UNION NO. 147 1663
to issue a complaint. The State Board, too, declined to assert jurisdiction be-
cause it viewed that controversy as one between labor organizations affiliated
with-'the same parent body, which the State statute precluded that Board from
entertaining. The State Board, therefore, dismissed the cases, without prejudice
to reconsideration in the event of a determination by the courts of the juris-
dictional dispute between the two locals. No further proceedings were thereafter
initiated with that Board until October and November 1945, when a representa-
tion petition and unfair labor practice charge were filed by Kenny on behalf of
the Independent. At informal conferences with the Board, attended by all
parties, the representatives of the contracting parties contended that the closed-
shop contracts were valid, and that the Company was precluded from hiring any
but members of Local 147. After consideration, the Board decided to take no
further action.
The Respondent contends that this action by the State Board constituted a
"final determination" of the validity of the contracts, binding upon this Board.
The undersigned cannot agree. It is clear that the State Board did not further
process the representation petition, issue a complaint, hold a formal hearing,
or issue a decision and order. On the contrary, the letter to the parties from
the State Board concerning disposition of the pending cases, negates any impli-
cation of a formal determination"
Whatever effect, therefore, a liinahadjudtcatton by the State Board might have
had upon the right or the propriety of this Board to pass on the issues raised
by the complaint, the absence of such final adjudication removes any possible
doubt of this Board's right to do so. Neither establishes principles of res
judicata, nor considerations of comity affecting any cession agreements with the
State Board, preclude this Board from a determination of the present contro-
versy.
' Turning to the defense that the provisions of Section 10 (b) constitute a bar
to the complaint, the relevant-portion of Section 10 (b) provides:
Provided, That no complaint shall issue based upon any unfair labor
practice occurring more than six months prior to the filing of the charge
with the Board and the service of a copy thereof upon the person against
whom such charge is made . . .
The Respondent asserts, as has been generally recognized, that this provision
constitutes a statute of limitations. The Respondent does not dispute that the
immediate conduct on which the charge is based, that is, the action of the Re-
spondent in effecting Kenny's discharge, occurred within 6 months of the filing
and service of the charge.16 What the Respondent relies on is the fact that the
closed-shop contracts, pursuant to which Kenny's discharge was sought, had
been in existence for more than 6 months without any charge having been filed.
Since, therefore, the contracts themselves were immune from challenge, by
reason of having been in existence for more than 6 months, the Respondent
16 The text of the letter reads :
The Board has fully and carefully considered the amended petition and amended
charges which you filed in the above proceedings.
On the basis of the investigation of these cases, the scope of the unit sought
as appropriate for the purposes of collective bargaining, the limited showing of the
interest concerning representation and the existence of a collective bargaining agree-
ment , the Board has decided that insufficient reason is presented for the holding of a
formal hearing in the representation proceedings or for authorizing issuance of a
complaint on the amended charges.
Accoidingly, the Board has dismissed both the amended petition and the amended
charges . ( Emphasis supplied.)
16 Kenny was discharged on March 12, 1948; the charge was filed September 1, 1948,
and served the following day ; the complaint issued October 3, 1949.
1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
argues, the Board may not proceed to determine the validity of a discharge
arising in connection with those contracts.
In support of this position, the Respondent leans heavily upon the premise
that Section 10 (b) merely enacted into substantive law the so-called "Frey
rider" to the Board's previous appropriation bills. From this premise, the Re-
spondent argues that the Board's interpretation as to the effect of this rider on
its operations is controlling in determining the scope of Section 10 (b) under
the amended Act. It is true that, during the years prior to the enactment of
that Act, the Board did administratively determine that it was precluded, by
virtue of the rider to the Appropriations Act, from taking action to prevent
unfair labor practices in any complaint case, not only involving contracts in
existence for 3 months without charges having been filed, regardless of the
illegality of the contract (except as to contracts with company-dominated
unions), but also involving, discriminatory discharges arising out of the enforce-
ment of such,contracts.17
In the first place,•the interpretation given by the Board to a rider affecting the
use of funds for administering the Act can hardly be regarded controlling upon
substantive issues of law. Secondly, the legislative history concerning Section
10 (b), to which the Respondent alludes, indicates that Congress was concerned
primarily, not with an intention to enact the Frey rider into substantive law, but
rather with enacting into law-the Board's "doctrine of laches" in order to dis-
courage "dilatory filing of charges," though observing that the provision would,
coincidentally, obviate the necessity for continuing the rider.'s
Finally, since the gravamen of the complaint, here, is the act of causing or
attempting to cause an employer to discriminate against an employee, and not
the execution of the contracts (the Respondent itself putting in issue the valid-
ity of those closed-shop contracts), it is apparent that the causes of action are
not, as the Respondent apparently argues; inseparable. This was, evidently, the
view entertained by the Board in a comparable situation 19
The undersigned, therefore, finds, contrary to the Respondent's contention,
that the complaint is not barred by the provisions of Section 10 (b) of the
amended Act.
Two further contentions remain to be considered. The first is the contention
that Kenny was not, when hired, an "employee" within the meaning of Section
8 (b) (2). That section, it will be recalled, provides that it shall be an unfair
labor practice for a labor organization "to cause or attempt to cause an employer
to discriminate against an employee. .. ." The Respondent does not deny
that Kenny was actually hired by the Company nor that he worked two shifts.
17 Eighth Annual Report, pp. 7-9 ; Ninth Annual Report, pp. 5-6 ; Tenth Annual Report,
pp. ^54-55 ; Eleventh Annual Report, p. 51. See also, "Interpretation and Application,
of amendment to Appropriations Act," by General Counsel Robert B. Watts, dated July 16,
1943 (M-1551).
'- The legislative history to which the Respondent refers is that of the Senate Majority
Report :
The principal substantive change in this section is a provision for a six month
period of limitations upon the filing of charges. The Board itself by adopting a
doctrine of laches has to some extent discouraged dilatory filing of charges, and a rider
to the current appropriations bill (which if this amendment was adopted would no
longer be necessary) contains a three month period of limitations with respect to
certain kinds of unfair labor practices. (Senate Report No. 105 on S. 1126, 432.)
19 Guy F Atkinson Co., et al, supra, in which the Board said, "The complaint alleged,
and the Trial Examiner found, the signing of the contract to be an independent violation
of Section 8 (1) However, as the contract was signed on August 16, 1947, and the
charge was not filed until February 27, 1948, more than 6 months after the effective date
of the Act, Section 10 (b) precludes such a finding . . ." (footnote 14). Nevertheless, the
Board found this no obstacle to a finding that the discharge pursuant to that contract
was violative of Section 8 (a) (3) and 8 (a) (1) of the amended Act.
COMPRESSED AIR, ETC., LOCAL UNION NO. 147 1665
Its contention is apparently based on the theory that Kenny was hired contrary
to the provisions of the closed-shop contracts, and that he was not, therefore, a
"bona fide employee." To hold such a contention valid would be to give effect
to closed-shop provisions, which have already been found illegal. Even assum-
ing, as the Respondent contends, that Kenny was merely an applicant for
employment (which the record does not support), the undersigned concludes,
contrary to the contention of the Respondent, that the provisions of Section
8 (b) (2) apply to applicants for emplopuent as well as employees. The Re-
spondent contends that because this section speaks in terms of discrimination
against "an employee," the term must be literally construed. This section,
it argues, is not "coterminous with Section 8 (a) (3)," which speaks of dis-
crimination "in regard to hire and tenure of employment," and which, the Re-
spondent concedes, as both the Board and the courts have held, includes appli-
cants for employment.20 The argument overlooks the express language of Sec-
tion 8 (b) (2), which reads,
. . . to cause or attempt to cause an employer to discriminate against an
employee in violation of subsection (a) (3) .. . (Emphasis supplied.)
Since, as the Respondent concedes, Section 8 (3), now 8 (a) (3), encompasses
within its protection applicants for employment, the Respondent's contention
is without substance.
This leaves for consideration the remaining contention that the Respondent
may not be held to have violated Section 8 (b) (2) because, even if it requested
or demanded the discharge in accordance with the closed-shop contracts, which
the Respondent denies, such request or demand was unaccompanied by any form
of coercion, such as a strike or strike threat. "Whatever was done by the
Company," says the Respondent, "in connection with Kenny's alleged discharge
was done by it freely and voluntarily and in pursuance of its own admitted
contractual obligations." And, again, "The,fact that the Union's representatives
may have wanted Kenny discharged or that they may even have expressed them-
selves as desiring it, is not enough to establish a violation of Section 8 (b) (2).
If there were any doubt about this, the provisions of Section 8 (c) remove it." 21
The factual contention, that the Respondent did not demand or request Kenny's
discharge, has already been resolved against it. The Respondent's legal con-
tention attempts to equate a request or demand with an expression of "views,
arguments or opinion," which, of course, it clearly is not.
But the absence of a threat does not immunize the Respondent's demand for
the discharge from the prohibition of Section 8 (b) (2). While the element
of coercion has frequently been present in cases in which the Board has found
a violation of the section here involved, it does not follow that such element is
a prerequisite. Nothing in the section itself, or in the legislative history,
requires the conclusion that, in order to "cause or attempt to cause" discrimi-
nation, some form of coercion is required, where the demand for the discrimi-
nation is made pursuant to an illegal closed-shop contract. As Judge Learned
Hand recently observed,
.. . We do not believe that Congress meant to allow a union to persuade
an employer so to discriminate, even though it does so without threats or
promises. Section 8 (b) (2) . . . forbids "causing or attempting to cause"
an employer to discriminate against an employee, because he has been put
out of a union for any reason but failure to pay his dues ; and again we do
20 Phelps Dodge Corp. v. N. L R. B., 313 U. S. 177, 180.
21 From the Respondent's brief, pp. 22-23.
943732-51-106
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not believe that Congress intended to make such attempts lawful, if unac-
companied by threats or promises.'
The Board has only recently held that, merely by "agreeing to and actively
participating in the enforcement" of illegal closed-shop conditions, a union
violates Section 8 (b) (2) of the Act?' The Respondent's contention is rejected.
Upon the basis of the foregoing and the entire record, the undersigned con-
cludes that the Respondent, on or about March 12, 1948, caused and attempted
to cause, and has since that date, caused or attempted to cause Mason & Hanger
Co., Inc., to discharge Janes P. Kenny, an employee to whom membership in
the Respondent had been denied on grounds other than his failure to tender
periodic dues and initiation fees uniformly required as a condition of acquiring
membership, in violation of Section 8 (b) (2). Moreover, since there was not
in effect, at the time of Kenny's discharge, any valid agreement which required
him to acquire or retain membership in the Respondent, and since discrimination
in regard to hire and tenure of employment is itself a form of coercion,'the
undersigned further concludes that, by causing the said discrimination, the
Respondent has restrained and coerced said Kenny in the exercise of his right
to refrain from joining Local 174, guaranteed by Section 7, in violation of
Section 8 (b) (1) (A) of the amended Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section III, above, occurring in
connection with the operations of the Company, described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States; and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist therefrom, and take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent has violated Section 8 (b) (2) and
8 (b) (1) (A) of the Act, by causing the Company to discriminate against James
P. Kenny, an employee to whom membership in the Respondent was denied on
grounds other than his failure to tender the periodic dues and initiation fees
uniformly required as a condition of acquiring or retaining membership therein.
Although the undertaking on which Kenny had been employed at the time of his
discharge has long since been completed, and, as the record reveals, projects such
as that in which the Company engages are rare, it will, nevertheless, be recom-
mended that the Respondent be required to cease and desist from the unfair
labor practices which it has been found to have committeed. Moreover, the
unfair labor practices in which the Respondent has engaged, and the record as
a whole, manifest a determination on the part of the Respondent to prevent
Kenny from obtaining employment with the Company or any other employer
engaged in the construction industry, with which it may have contractual rela-
tions, by denying said Kenny membership on grounds other than those permitted
under the amended Act. It will, therefore, be recommended that the Respondent
cease and desist from causing or attempting to cause the Company or any other
n International Brotherhood of Electrical Workers, Local 501, et at. v N. L. R. B.,
181 F. 2d 34 (C. A. 2).
sa International Longshoremen's and Warehousemen's Union, et at (Waterfront
Employers Association of the Pacific Coast ), 90 NLRB 1021; National Union of Marine
Cooks and Stewards (Pacific American Shipowners Association), 90 NLRB 1099.
COMPRESSED AIR, ETC., LOCAL UNION NO. 147 1667
employer to discriminate against the said Kenny, or any other employee, with
respect to whom membership in the Respondent has been denied on grounds
other than failure to tender periodic dues and initiation fees, except to the extent
permitted by Section 8 (a) (3) of the Act, or in any other like or related manner,
causing or attempting to cause the Company, its officers, agents, successors, or
assigns, or any other employer to discriminate against any employee in violation
of Section 8 (a) (3). It will be further recommended that the Respondent cease
and desist from restraining and coercing employees of said Company or any other
employer in the exercise of their right to refrain from any and all of the con-
certed activities guaranteed by Section 7 of the Act. The undersigned will also
recommend that the Respondent notify the Company in writing that it withdraws
its objections to the employment of Kenny by the Company, and that it wfll not
object to his employment by the Company for any work he is qualified to perform
on any similar projects in which the Company may engage in the future within
the Respondent's jurisdiction or in which it may have rights as bargaining repre-
sentative, and that it will not cause or attempt to cause the said Company to
discharge or otherwise discriminate against said K(,nny because of his non-
membership in the Union, except to the extent permitted by Section 8 (a) (3) of
the Act.
It will further be recommended that the Respondent make the said Kenny
whole for any loss of pay he may have suffered as a result of the Respondent's
unlawful conduct. The Respondent contends that Kenny's employment with the
Company would, in any event, have terminated on March 20, 1948, when the
gang on which he was working was laid off due to the nature of the operations.
At most, therefore, the Respondent maintains, Kenny would be entitled to back
pay from March 12, 1948, the "date of his discharge, until March 20, 1948, when,
according to the Respondent, he would have been laid off in any event. While it is
undisputed that the gang on which Kenny was originally hired was, in fact,
laid off on the date indicated, it does not follow that Kenny would not have
been afforded other employment as a sandhog either with the Company or the
George H. Flinn Corporation, the contractor engaged in the construction of the
Brooklyn,side of the tunnel, had it not been for the Respondent's unlawful con-
duct in causing Kenny's discharge. The undersigned will, therefore, recom-
mend that the Respondent be required to make said Kenny whole for any loss
of pay he may have suffered by reason of the Respondent's conduct, by payment
to him of a sum equal to the amount he normally would have earned as wages
on the said project from March 12, 1948, the date on which he was discharged, to
the date on which the Respondent serves notice on the Company of its withdrawal
of objections to Kenny's employment, less his net earnings during said period.21
For purposes of determining the amount of back pay which may be due Kenny, the
Board's formula in the F. W. Woolworth Co. case 23 shall be applied.
On the basis of the foregoing findings of fact and the entire record in the case,
the undersigned makes the following:
CoNcLusIons or LAW
1. Compressed Air, Foundation, Caisson, Tunnel, Subway, Sewer, Cofferdam
Construction Local Union No. 147 of New York, New Jersey States and Vicini-
ties, affiliated with the International Hod Carriers, Building and Common
Laborers Union of America, of the American Federation of- Labor, is a labor
organization within the meaning of Section 2 (5) of the Act.
24 Crossett Lumber Company, 8 NLRB 440.
25 90 NLRB 289.
1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By causing and attempting to cause the Company to discriminate against
James P. Kenny, with respect to whom membership in the Respondent has been
denied on grounds other than his failure to tender the periodic dues and the
initiation fees uniformly required as a condition of acquiring or retaining mem-
bership in said Union , and by restraining and coercing an employee of the Com-
pany in the exercise of rights guaranteed in Section 7, the Respondent has vio-
lated Section 8 (b) (1) (A) and (2) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
[Recommended Order omitted from publication in this volume.]
GERBER PRODUCTS COMPANY 1 and UNITED PACKINGHOUSE WORKERS OF
AMERICA, CIO, PETITIONER. Case No. 3-RC-606. April 23, 1951
Decision and Direction of Election
Upon a petition duly filed, a hearing was held before John C.
McRee, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed .2
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Houston, Murdock, and
Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.
3. Gerber and the Intervenor contend that their contract dated
December 15, 1950, precludes a present determination of representa-
tives. They assert, in this connection, that the Petitioner's representa-
tion claim made to Curtice Brothers Company, hereinafter called
Curtice,3 on December 13, 1950, followed by the filing of its original
petition on December 21, 1950, naming Curtice alone as the Employer,
did not render their contract ineffective as a bar.
The record shows that, for many years, Curtice alone was engaged
at the plant here involved, principally in the canning and shipping of
tomatoes and boned chicken. These canning operations required only
a few months activity each year, and the balance of the year was
i The amended petition herein designated the Employer as "Curtice Brothers Company
and its successor Gerber Products Company." As Gerber Products Company, hereinafter
called Gerber or the Employer , is now the sole employer at the plant , its motion to strike
"Curtice Brothers Company and its successor" from the petition is hereby granted.
2 Gerber and Federal Labor Union No. 23933, AFL, hereinafter called the Intervenor,
moved to dismiss the petition , in substance , on grounds relating to contract bar. For
the reasons set forth in paragraph numbered 3, antra, the motion is hereby denied.
3 Although served with notice , Curtice did not appear at the hearing.
93 NLRB No. 269.