Essex County and Vicinity District Council of Carpenters

National Labor Relations Board - Board Decisions

Aug 6, 1951

95 N.L.R.B. 969 (N.L.R.B. 1951)

ESSEX COUNTY, VICINITY DIST . COUNCIL OF CARPENTERS, ETC . 969
ESSEX COUNTY AND VICINITY DISTRICT COUNCIL OF CARPENTERS, AFL,
AND PAINTERS COUNCIL NUMBER 10 , AFL and FAIRMOUNT CON-
STRUCTION COMPANY. Cases Nos. 2-CB-94, 2-CB--97, and 2-CB-
112., August6,1951
Decision and Order
On February 24, 1950, Trial Examiner William F. Scharnikow
issued his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent Carpenters had engaged in certain unfair
labor practices. in violation of Section 8 (b) (1) '(A), 8 (b) (2),.
and 8 (b) (3) .of the Act and recommending that it cease and desist
therefrom.and take certain affirmative action; as set forth in the copy
of the Intermediate Report attached hereto.. Thereafter the Re-
spondent Carpenters filed exceptions to the Intermediate Report..
On September 11, 1950, the Board reopened the record and remanded
the case to the Regional Director for. the Second Region for the lim-
ited purpose of receiving evidence as to the purchases of the Em-
ployer and its subcontractors. and.suppliers during the year 1949.
Thereafter,. the parties filed with the Board a stipulation dated Feb-
ruary 19, 1951, in which they agreed upon certain facts concerning
these 1949 purchases but reserved their right to file exceptions and
briefs before the Board. The stipulation was referred to the Trial
Examiner. On April 4, 1951, Trial Examiner Scharnikow issued a.
Supplemental Intermediate Report, attached hereto, recommending,
that the complaint be dismissed on, the ground the Employer's opera-
tions do not meet the criteria established by the Board for the asser--
tion of jurisdiction., The Employer thereupon filed exceptions to
the Supplemental Intermediate Report with a supporting brief while,
the Carpenters filed. a brief in support of the Supplemental Inter-
mediate Report.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The-
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the Supplemental Intermediate Report, the exceptions
and briefs filed to both Reports, and the entire record in the case.
The Board hereby adopts the findings, but rejects the conclusions of
the Supplemental Intermediate Report for the reasons noted herein-
after. The Board further adopts the findings, conclusions, and rec-
ommendations of the Intermediate Report with the additions and
modifications noted below :
1. On the entire record, the Board finds that Fairmount Contruc-
tion Company is engaged in commerce within the meaning of the. Act_
95 NLRB No. 113.
'970 - DECISIONS OF; NATIONAL LABOR RELATIONS BOARD
In the Supplemental Intermediate Report, the Trial Examiner con-
-eluded that the direct and' indirect inflow, of . materials to the Fair-
mount Construction Company's Ivy Hill project did not, either sep-
arately or in the combination of their percentages, satisfy the Board's
:minimum policy requirements for the exercise of its jurisdiction. We
-do not agree. The Ivy Hill project, as originally contemplated, was
to consist of the construction of 600 dwelling units, primarily 2-family
homes, for an estimated total value of approximately $6,000,000. Less
'than one-fourth of these units had been completed by May 1949 when
the original hearing in this case commenced as the project was inter=
:tupted in the middle of May 1948, by a strike which is the subject of
-the unfair labor practice charges in this case. Direct inflow of mate-
rials to the project from sources outside. the State of New Jersey
amounted, in value, to approximately $72,724 in 1947, $ 289,656 in
1948, and $40,763 in 1949.1 During the period between Match 1947
and May 1949, Fairmount and. its subcontractors and suppliers purr
chased from dealers and suppliers located within the State of New
Jersey. goods originating outside that State,' which amounted' to ap-
.proximately $550,000 in value and, in the year 1949 alone, to $190,000 a
The Trial Examiner, in the Supplemental Intermediate Report, was
correct in the finding that the direct and indirect inflow of goods to the
Fairmount Construction Company and the Ivy Hill project in no'
-yearly period equaled the minimum amounts set by the Board as
'-standards for the assertion of jurisdiction on the basis of inflow .3 In
the absence of other considerations, the conclusion reached by the
'Trial Examiner that the complaint should therefore be dismissed is
correct. The Board, however, in enunciating the standards by which
it.would determine whether the policies of the Act would be effectu-
ated by asserting jurisdiction, did not intend that the criteria which
were adopted must be satisfied in the most strict and literal sense.
1 The dollar valuations of direct inflow for the years 1948 and 1949 are herein given
as found by the Trial Examiner in the Supplemental Intermediate Report. The Trial
Examiner; however, erred in that Report in the statement that no computation was
available for such inflow during the year 1947 . The figure for that year is given as
set forth in the record of the hearing in this case.
2 The dollar valuation of goods comprising indirect inflow - in 1949 appears herein as
found by the Trial Examiner in the Supplemental Intermediate Report. No precise
computation is available from the record as to the amount of annual indirect inflow .for
the period from March 1947, when the project started, to May 1949, when the hearing
was held. However , as found by the Trial Examiner - in the Intermediate Report, Fair-
mount, itself , purchased $ 449,155 of materials in that period from local suppliers, who,
in turn, received the goods from points outside the State of New Jersey. The record
also shows that Fairmount 's subcontractors , in that period , purchased over $100,000
in the same manner.
3See The Rutledge Paper Products , Inc., 91 NLRB 625; Dorn's House of Miraoles, Inc.,
91 NLRB 632; and Federal Dairy Co., Inc., 91 NLRB 638, where the Board determined
that it would exercise jurisdiction over enterprises whose direct inflow annually approxi.,
mated $500,000 or whose indirect inflow approximated $ 1,000,000 or where the employer's
indirect and direct inflow as percentages of the minimum requirements together are
equivalent to 100 percent. -
ESSEX COUNTY, VICINITY DIST. COUNCIL OF CARPENTERS , ETC. 971
Thus, the Board has exercised jurisdiction where the record, of neces-
sity, lacked information as to the annual operations of a new em-
ployer, but where the available figures for a shorter period could be-
projected. in such manner as to create "a reasonable expectation" that
the yearly minima would be met in the passage of time.'
In the instant case, the record clearly shows that the operations of
Fairmount at the' Ivy Hill project were severely curtailed by the,
strike which became the subject of the unfair labor practice charges
now before the Board. If, absent the occurrence of this strike, the
operations of Fairmount would have met the requirements set forth-
by the Board for asserting jurisdiction, a dismissal for want of juris-
diction would be self-defeating. In that instance the Board would-
be deprived of jurisdiction to adjudicate and correct an alleged un-
fair labor practice by the very conduct which is the subject of the-
complaint. It thus becomes essential to detern;ine, not alone what
the operations of Fairmount were during the period in question, but
what those operations would have been but for the strike. It is clear
that there is no 'method by which the operations and flow of commerce
absent the strike can be precisely measured. However, the Board
considers the sharp decline in the purchases of Fairmount during:
1949 as indicating that the 1948 operations of that company would-
have been appreciably higher had not the strike occurred .5 As noted.
,previously, during the year 1948, Fairmount received materials.
amounting in value to $289,656 in direct inflow and an undetermined
percentage of $550,000 in indirect inflow. If, as is an inescapable con-
clusion from the record, these purchases were for the most part made-
before the strike commenced in May of that year, it is a reasonable-
conclusion that the operations of Fairmount in 1948 would have met
or surpassed the minimum inflow requirements' had not the strike-
taken places Accordingly, the BBoard finds that it would effectuate,
the policies of the Act to. assert jurisdiction over the operations of-
Fairmount Construction Company.
2. In the Intermediate Report, the Trial Examiner found, and we-
:agree, that the Respondent Carpenters violated' Section 8 (b) (1) (a)
by restraining and coercing employees of Fairmount Construction
Company and of other employers engaged in the delivery of materials
4 See General Seat and Back Mfg. Corp ., 93 NLRB 1511.
6 Thus, direct inflow purchases amounted to only $40 ,000 in 1949 after totaling $289,000,
in 1948 and $72,000 for the 9 months of 1947 the project was in operation. While
statistics are not available in yearly breakdowns for the indirect inflow, it is logical to-
assume that such purchases also declined sharply.
6 Even with curtailed operations in 1948, the direct inflow of Fairmount constituted
57. percent of the Board 's minimum of $500,000 in that category and the indirect inflow
'constituted an undetermined , but appreciable .petcentage of the Board's alternate ,minimum,
of $1,000,000 for indirect inflow. As the . strike-free operations of Fairmount constituted
only, 5 months of the calendar year of 1948, we conclude that these percentages . would,
have totaled more than the 100 percent required , had operations been normal for the year..
972 ' -DECISIONS.DECISIONS *OF NATIONAL. LABOR RELATIONS BOARD 4{ ,
to the Ivy Hill project, in the exercise of the rights guaranteed in
Section 7 of the Act. - In so. finding, however, we do not pass upon the
question of whether individuals engaged in picketing activities be-
come, per se, agents of the sponsoring labor organization. In 'this
case, the responsibility of the Respondent Carpenters for the incidents
which we find to have been violations of Section 8 (b) (1) (A) stems
not alone from the control and guidance of the pickets exercised by
the business agents and the presence of the latter at many of the un-
lawful acts, but also from the pattern of violent and coercive conduct
set by the actions of the business agents themselves .7
3. We also find as did the Trial Examiner in the Intermediate Re-
-port that the Respondent Carpenters violated Section 8 (b) (2) by
demand for and insistence upon a contract incorporating an illegal
closed-shop provision coupled with a threat of strike and a resulting
work stoppage in support of the demand. By the foregoing action,
it is clear that the Respondent Carpenters also violated Section 8 (b)
(3) by a refusal to bargain collectively with the Employer.
4. The Respondent Carpenters at the hearing and in exceptions
filed to the Intermediate Report contends that the Board and the Gen-
eral Counsel either waived the "right" to- proceed against the Re-
spondent Carpenters or condoned the violations found to have been
committed, or estopped this agency from continuing the action against
the Respondent Carpenters by approval of settlement stipulations
with the Essex County Building and Construction Trades Council and
Painters Council Number 10, AFL." We find no merit in these con-
tentions. Conduct alleged to be violative of the National Labor Re-
lations Act is not condoned or waived as to, nor is the Board estopped
from proceeding on a complaint against, organizations or individuals
merely because a settlement agreement within the purview of the
:statute has been reached with others. who also engaged in such con-
duct. We can perceive no prejudice attaching to the Respondent
Carpenters from the action of the General Counsel in severing that
part of the complaint alleging unfair labor practices on the part of
'the Painters Council. However, we do not adopt the Trial Examiner's
.rulings as to the respective powers of the Board and the General Coun-
sel following the issuance of a complaint and the opening of a hear-
ing thereon.9
° See International Longshoremen 's and Warehousemen's Union ( Sunset Line and Twine
'Company ), 79 NLRB 1487.
IIt should be noted that the Board does not, in the absence of provision for a Board
order, "approve " settlement stipulations made before a complaint has issued and no
-such approval was tendered to the settlement agreements executed herein.
9 See United Aircraft Corporation, Pratt & Whitney Aircraft Division , 91 NLRB 215.
In that case , on appeal from a ruling of Trial Examiner denying a request by the General
Counsel to dismiss a complaint prior to issuance of .the Intermediate Report, the Board
'held that nothing contained in Section 3 (d) of the Act limits the authority of the Trial
.`Examiner, under such circumstances , to deny a requested dismissal.
ESSEX .CO.UN(t ,'V+ZCIIV:L'P;Y DIST. COTJNICLL`-:OF CARPENTERS, ETC. 973
Order
Upon the entire record ' in the case , and..pqrsuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent , Essex County and Vicinity
District Council of Carpenters , AFL, their officers, and agents shall :
1. Cease- and desist from;
(a) Threatening to take strike action , or directing , instigating, or
encouraging employees to engage in or to threaten to engage in, strike
action, or approving or ratifying strike action taken by employees, for
the purpose of requiring the Employer to violate Section 8 ( a) (3) of
the Act by discriminating with respect to the employment or condi-
tions of employment of any employees.
(b) In any other manner causing or attempting to cause the Em-
ployer to discriminate against employees in violation of Section 8
(a) (3) of the Act.
(c) Refusing to bargain collectively as, and so long as it is , the ex-
clusive representative , of the employees in the unit herein found to be
appropriate , either by specific refusal or insistence upon a contract
requiring Fairmount Construction . Company to discriminate against
employees and applicants for employment in violation of Section
8 (a) (3) of the Act.
(d) Restraining or coercing employees of Fairmount Construction
Company or employees of other employers engaged in the delivery of
materials , to the Ivy Hill project of Fairmount Construction Company,
in the exercise of the rights guaranteed in Section 7 of the Act, includ-
ing the right to refrain from self-organization , from joining or assist-
ing Essex County and Vicinity District Council of Carpenters, AFL,
and from engaging in concerted activities for the purposes of collec-
tive bargaining.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request , bargain collectively with Fairmount Construc-
tion Company, as, and - so long as it is , the exclusive representative of
the employees in the unit herein found to be appropriate, and if an
understanding is reached , embody such understanding in a signed
agreement.
(b) Post immediately at conspicuous places at the business office of
the Essex County and Vicinity District Council of Carpenters, AFL,
and at all other places where notices and communications to members
are customarily posted , copies of the notice attached hereto and marked
"Appendix A," 10 said copies to be furnished by the Regional Director
io In the event that this Order is enforced by decree of a United States Court of Appeals',
there shall be inserted before the words, "A Decision and Order" the words, "A Decree of
(the !United States Court of Appeals Enforcing."
974 DECISIONS OF. NATIONAL LABOR RELATIONS $OARI7
for the Second Region. This notice shall be signed by a duly author
ized officer of the Essex County and Vicinity District Council of Car-
penters, AFL, and shall remain so posted and maintained for a -period.
of sixty (60) days. Reasonable steps shall be taken by the Respondent-
Carpenters:..to insure that said. notices are not altered, defaced,- or
covered by any other material.
(c) Mail to the Regional Director. for the Second Region signed
copies of the notice, attached hereto as Appendix A, for posting, the
Employer willing, on the bulletin boards and all other places where
notices to employees are customarily posted by the Employer. The
notice shall be posted on the. bulletin boards of the Employer and main-
tained thereon for a period of sixty (60) consecutive days thereafter..
Copies of said notice, to be furnished by the Regional Director for the
Second Region, shall, after being signed as provided in paragraph 2
(b) of this Order, be forthwith returned to the Regional Director for
said posting. -
(d) Notify the Regional. Director of the Second Region in writing
within ten (10) days.from the receipt of this Order, what steps the
Respondent Carpenters has taken to comply herewith.'
MEMBER STYLES took no'part in the consideration of the above=
.Decision and Order.
Appendix A
NOTICE TO ALL OFFICERS, REPRESENTATIVES , AGENTS, AND MEMBERS O'
THE ESSEX COUNTY AND VICINITY DISTRICT COUNCIL OF CARPENTERS,
AFL
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we. hereby notify you that :
WE WILL NOT threaten to take strike action, or direct, instigate,
or encourage employees to engage in or to threaten to engage in,
strike action, or ratify strike action taken by employees, for
the purpose of requiring the Employer to violate Section 8 (a)
(3) of the Act by discriminating with respect to the employment
or conditions of employment of any employee.
WE WILL NOT in any other manner cause or attempt to cause
the Employer to discriminate against employees in violation of
Section 8 (a) (3) of the Act.
WE WILL, upon request, bargain collectively in good faith as,,
and so long as we are, the exclusive representatives- of all em-
ployees in the bargaining unit consisting of all carpenters,,
weatherstrippers, floorlayers, and linoleum layers at the Ivy Mill
project of FAIRMOUNT CONSTRUCTION COMPANY, with respect, to
a
ESSEX COUNTY , VICINITY DIST. COUNCIL OF CARPENTERS, ETC. 975
rates of pay, wages, hours of employment, and other conditions
of employment, and., if an understanding is reached; we will em-
body such understanding in a signed agreement.
WE WILL NOT restrain or coerce employees of FAIRMOUNT CoN-
'STRUCTION COMPANY or employees of other employers delivering
materials to the Ivy Hill project of the FAIRMOUNT CONSTRUCTION
COMPANY, in the exercise. of the rights guaranteed in Section 7
'of the National Labor Relations Act, including the right to re- '
fraiu from self-organization, from- joining or assisting Essex
County and Vicinity District Council of Carpenters, AFL, or
any of its affiliates, and.from engaging in concerted activities for
the purpose of collective bargaining.
ESSEx COUNTY AND VICINITY DISTRICT
COUNCIL OF CARPENTERS, AFL,
Labor Organization.
By ---------------- --------------------- ---
(Representative) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by other material.
Supplemental Intermediate Report and Recommendations
On February 24, 1950, the undersigned Trial Examiner, duly designated by
the Chief Trial Examiner , issued his Intermediate Report in the above -entitled
.proceedings , finding that the Respondent Carpenters had engaged in unfair
labor practices affecting commerce within the meaning of Section 2 (6) and (7)
and Section 8 (b) (1) (A ), (2), and ( 3) of the National Labor Relations Act,
herein called the Act.
On September 11, 1950, the National Labor Relations Board , herein called
the Board , issued an order reopening the record in the proceeding for the sole
and limited purpose of receiving evidence , by stipulation or further hearing, as
to the Fairmount Construction Company's and its subcontractors ' and suppliers'
.purchases of materials for the Ivy Hill, New Jersey; project during the calendar
.year 1949, with particular reference to the amount of such materials originating
outside the State of New Jersey.
On February 19, 1951, pursuant to the aforesaid order , the General Counsel,
counsel or the Respondent Carpenters , and counsel for Fairmount Construction
,Company signed such a stipulation and on February 20, 1951 , filed it with the
Board.
On March 5 , 1951, the Board issued a further order referring the aforesaid
:stipulation to the undersigned for the purpose of issuing a Supplemental Inter-
mediate Report containing findings of fact and conclusions of law regarding
the operations of Fairmount Construction Company and their effect upon com-
imerce :within the meaning of Section 2 (6) and ( 7) of the Act. Copies of the
said, order were duly served upon the parties on March 5, 1951 . No briefs, how-
ever , have been received by the undersigned.
Upon the stipulation referred to him by the Board , and upon consideration
,also of the relevant portions of the previous ' record to which the stipulation
':makes reference the undersigned makes the following
976 DECISIONS OF' NATIONAL' LABOR RELATIONS BOARD
FINDINGS OF FACT, CONCLUSIONS, AND RECOMMENDATION
The stipulation referred by the Board to the undersigned provides :
2. For the purpose of the remand proceedings and in lieu of the formal.
hearing of the issue raised by the Board in its remand order of September
11, 1950, the following facts are hereby stipulated and agreed upon by the
respective parties to this proceeding:
a. During the calendar year 1949, the Fairmount Construction Com-
pany purchased building materials valued at $40,763.70 which were-
shipped directly to said Fairmount Construction Company's Ivy Hill
project at Ivy Hill, N. J., from points located outside the State of New-
Jersey.
b. During the calendar year 1949, said Fairmount Construction Com-
pany, its sub-contractors and suppliers purchased building materials
valued at $253,364.15 for the Ivy Hill project, from building material
dealers and suppliers located within the State of New Jersey, approxi
mately 75 percent of which originated from points located outside New
Jersey.
3. General Counsel's exhibit 2 heretofore introduced into evidence at.
the hearing held in these proceedings showing the purchases of building
materials by said Fairmount Company, directly from sources located outside
of State of New Jersey during the year 1949, as totaling $145,448.00 be and
the same is hereby corrected to read $40,763.70. The amount of direct pur-
chases by said Fairmount Construction Company for the calendar year
1948, also appearing on said exhibit as totaling $184,972.00 be and the same
is hereby corrected to read $289,656.30.
Upon the basis of this stipulation, the undersigned finds that during the
calendar year 1949, the direct inflow of materials to. Fairmount at its Ivy Hill
project from points located outside the State amounted to $40,763.70 and that
during the same year the indirect inflow to Fairmount, its subcontractors, and:
suppliers amounted to $190,023.10. Since these amounts of direct and indirect.
inflow for 1949 do not, either separately or in the combination of their per-
centages, satisfy the minfma of the Board's recently established requirements.
for the exercise of its jurisdiction as a matter of policy,' the undersigned rec--
•ommends that the complaint be dismissed .2
Intermediate Report and Recommended Order
STATEMENT OF THE CASE'
The above-entitled cases were initiated by charges filed by Fairmount Construe-
. •tion Company (herein called Fairmount), against Essex County and Vicinity
District Council of Carpenters, A. F. of L. (herein called the Carpenters), and
Painters Council Number 10, A. F. of L. (herein called the Painters).
' Merrill Construction Co., 92 NLRB 93; Rutledge Paper Products, Inc., 91 NLRB 625;:
Dorn.'s House of Miracles, Inc., 91 NLRB 632; Federal Dairy Co., Inc., 91 NLRB 638;:
The Plumbing Contractors Association of Baltimore, Maryland, Inc., 93 NLRB 1081..
.2 The undersigned believes that the Board's order reopening the record limits his inquiry
and consideration to the interstate direct and indirect inflow of materials to the Ivy Hilt
project during the year 1949 . However, even were he permitted-to consider the inflow
to Fairmount for other years, the undersigned would still'', be unable, to recommend that
the Board assert jurisdiction . For neither the original record nor the- supplementing'
stipulation shows, or enables a computation of,' the extent of direct or,sindirect Inflow
for the year 1947 and, so far as 1948 is concerned , only the corrected, and insufficient
figure of $289,656.30 for direct inflow is furnished by the stipulation,,,referred to the
undersigned by the Board.
ESSEX COUNTY, VICINITY DIST. COUNCIL OF CARPENTERS , ETC. X977
Fairmount's charge in Case No. 2-CB-97, which was filed and served on June
28, 1948, and never amended, was directed solely against the Carpenters and
alleged the commission of unfair labor practices, by the Carpenters within the
meaning of Section 8 (b) (3) of the National Labor Relations Act' (herein
called the Act). Fairmount's first amended and final charges in Cases Nos-
2-CB-94 and 2-CB-112 were filed on October 5, 1948, were served on October- 6,
1948, and were directed against the Carpenters, the Essex County Building and
Construction Trades Council (herein called the Building Trades Council), and 21
affiliates of. the Building Trades Council, including the Painters.' In Case No-
2-CB-94, the amended charge alleged the commission by these labor organiza-
tions of unfair labor practices within the meaning of Section 8 (b) (1) (A) of
the Act ; in Case No. 2-CB-112, the amended charge alleged the commission
by these labor organizations of unfair labor practices within the meaning of
Section 8 (b) (2) of the Act.
On January 17, 1949, the Regional Director for the Second Region (New York,
New York), acting for the General Counsel of the National Labor Relations
Board,' approved a "settlement stipulation" previously executed by the Building
Trades Council and the.repeenttive of the General Counsel entrusted with the
handling of the cases. By this "settlement stipulation," the Building Trades
Council on behalf of itself and all of its affiliates who were named in the charges
filed in Cases Nos. 2-CB-94 and 2-CB-112, except the Painters, expressly
denied 'the commission of any unfair labor practices, but agreed, nevertheless, not
to commit any of the unfair labor practices charged against them, to post notices
to this effect at the business offices of the Building-Trades Council and its affiliates,
and also to provide similar. signed notices for posting at the building project of
Fairmount and the business premises of certain companies doing business with
Fairmount. The Regional Director, in turn,.agreed "upon the basis of the agree-
ment," to "decline to issue a complaint in the above cases against said Essex
County Building and Construction Trades Council and the affiliates" on. whose
behalf the Building Trades Council entered the "settlement stipulation." A
"settlement stipulation" with identical terms was offered at the same time to the
Carpenters but the Carpenters refused to accept it.4
On March 21, 1949, the General Counsel by the Regional Director for the Second
Region, issued an order consolidating Cases Nos. 2-CB-94, 97 and 112,' and a.
consolidated complaint against the Carpenters and the Painters, alleging (1)
that the Carpenters and the Painters had engaged in, and were engaging in,
unfair labor practices affecting commerce within the meaning of Section 8 (b) (1)
(A) and Section 2 (6) and (7) of the Act, and (2) that the Carpenters had also,
engaged and was engaging in, unfair labor pra;gtices affecting commerce within
the meaning of Section 8 (b) (2) and (3) and Section 2.(6) and (7) of the Act.'
Copies of the charges, amended charges, the order consolidating the cases, the
161 Stat. 136.
2 The Painters, but not the Carpenters, was a member of the Building Trades Council.
8 The General Counsel and the staff attorney appearing for him at the hearing are.
herein referred to as the General Counsel ; the National Labor Relations Board is referred
to as the Board.
' The record is silent as to whether or not the Painters, though a member of the.
Building Trades Council, specifically rejected the January 1949 "settlement stipulation"'
covering the other affiliates of the Building Trades Council. ' As will be seen, however, the.
Painters entered into a subsequent settlement agreement with the General Counsel during
the course of the hearing in June 1949. .
6'The Regional. Director's. action in this respect was.taken pursuant to. Section 203.33 of
the Board' s Rules and Regulations.
6 Although the amended charge in Case No. 2-CB-112 asserted that the Painters had'd
violated Section 8 (b) (2) of the Act, no such allegation was set forth in the complaint.
`978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consolidated complaint, a notice of hearing, and notices postponing hearing, were
duly servea upon the Carpenters, the Painters, and Fairmount.
With respect to the alleged unfair labor practices within the meaning of
Section 8 (b) (1) (A) of the Act, the complaint, as amended at the hearing,
stated that between May 19 and 24, 1948, and between June 1 and 30, 1948, during
the course of a strike among Fairmount's employees at its, Ivy Hill housing
project in Newark,. New Jersey, the Carpenters and the Painters "with the assist-
ance and support of other labor organizations affiliated with the Essex County
Building and Construction Trades Council did, jointly and severally, engage
in mass picketing, threats, and acts of violence against, and make promises of
benefit to, employees of said Fairmount Company and also against and to
employees of other employers engaged in subcontract work on, or the delivery
of materials to, the said Ivy Hill project because they refused to join or assist
the Respondents Carpenters Council, Painters Council, and other labor organiza-
tions affiliated with the Essex County Building and Construction Trades Council
in their concerted activities against said Fairmount Company and its sub-
contractors."
With respect to the alleged unfair labor practices within the meaning of Section
8 (b) (2) and (3) of the Act, the complaint as amended at the hearing, stated
in substance that: (1) On or before May 18, 1948, the Carpenters was designated
and selected as collective bargaining representative by a majority of Fairmount's
employees in an appropriate bargaining unit consisting of all Carpenters at the
Ivy I-Iili project including weatherstrippers, floorlayers, and linoleum layers;
(2) on or before May 18, 1948, the Carpenters was, therefore, the exclusive
bargaining representative of the employees in this appropriate unit; (3) on
or before May 18, 1948, the Carpenters "demanded and insisted, among other
things, that the said Fairmount Company agree to a contract which would cause
the said Fairmount Company to discriminate against its employees by requiring
it to hire or give preference in hiring to employees who were members in good
standing of locals affiliated with the Respondent Carpenters Council" ; (4)
on and since about May 18, 1948, the Carpenters "has engaged in a strike to
compel said Fairmount to agree to, among other things, a contract containing
provisions which would prevent said Fairmount Company from hiring nonunion
employees on said project"; (5) on and since May 19, 1948, the Carpenters
"with the assistance and support of other labor organizations affiliated with
the Essex County Building and Construction Trades Council did . . . jointly
and severally engage in mass picketing„threats, acts of violence and damage to
property, for the purpose of compelling said Fairmount Company and its sub-
:contractors on said project to cease hiring employees who were not, respectively,
members of locals affiliated with the Respondent Carpenters Council, Painters
Council, or of labor organizations affiliated with the Essex County Building and
Construction Trades Council"; (6) by the foregoing acts, the Carpenters in
violation of Section 8 (b) (2) of -the Act, attempted to cause Fairmount to
discriminate against its employees contrary' to Section 8 (a) (3) of the Act;
and (7) by the foregoing acts, the Carpenters also refused and is refusing
to bargain in good faith with Fairmount in violation of Section 8 (b) (3) of
the Act.
On May 24 and May 25, 1949, Trial Examiner Isadore Greenberg, duly desig-
nated by the Chief Trial Examiner, granted in part and denied in. part separate
motions for bills of particulars concerning the allegations of the complaint,. Which
motions had been made by the Painters and the Carpenters on May 18 and May'23,
1949, respectively. Thereafter, the Board denied the respective applications of
the Painters and the Carpenters for leave to file interlocutory. appeals from Trial
Examiner Greenberg's partial denials of their motions for bills of particulars.
ESSEX COUNTY, VICINITY DIST. COUNCIL OF CARPENTERS, ETC. 979
Before the hearing, the General Counsel served upon the Painters and the Car-
penters the. bills of particulars directed by Trial Examiner Greenberg.
Before the hearing, the .Painters filed an answer to the complaint and the
Carpenters filed an answer and motion to dismiss the complaint. In substance,
both the Painters and the Carpenters denied the allegations of the complaint
and asserted that (1) the complaint failed to set forth "facts sufficient to con-
stitute an unfair labor practice and is insufficient in law" ; and (2) Fair-
mount is not engaged in interstate commerce, and the Board, therefore, has no
jurisdiction of the case under the Act. In its motion to dismiss, the Carpenters
also asserted that the effect of Fairmount's operations on interstate commerce
is "too negligible and insubstantial, remote and indirect to bring said operations
and activities within the range of the Act," and that the picketing alleged in the,
complaint as an unfair labor practice was protected by the guaranty of free
speech in the Federal Constitution.
Pursuant to notice, a hearing was held on various dates from June 2 to July 5,
1949, inclusive, at Newark, New Jersey, before.William F. Scharnikow, the under-
signed Trial Examiner duly designated by the Chief Trial Examiner. The
General Counsel, the Carpenters, the Painters, and Fairmount participated in
the hearing and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the issues.
At the opening of the hearing, the undersigned ruled upon a number of motions
before taking any evidence: (1) A motion by the General Counsel to amend
the complaint to allege the occurrence of the unfair labor practices between May
19 and 24, 1948, and between June 1 and 30, 1948, rather than on or about May
19, 1948, was granted; (2) the motion to dismiss the complaint, filed by the
Carpenters, before the hearing and now joined in by the Painters, was denied ;
(3) renewals of the motions of the Painters and the Carpenters for bills of
particulars (which were originally determined by Trial Examiner Greenberg)
were disposed of, by denying the motions in part but directing the General
Counsel to supply additional particulars which the undersigned believed were
necessary in view of the amendment of the complaint; (4) a further motion by
the General Counsel to amend the references in the complaint to the employees
of Fairmount to describe such employees as being jointly employed by Fairmount
and one Nick Blenx, who was Fairmount's superintendent, was denied ; and
(5) a motion by the Carpenters to stay the proceedings until the Board had
ruled upon its petition to appeal from Trial Examiner Greenberg's denial of its
motion for a bill of particulars,? was denied. During the hearing, the General
Counsel furnished the Carpenters with the additional particulars directed by the
undersigned.
After adducing. evidence concerning the nature of Fairmount's business opera-
tions, the General Counsel's representative announced that a "settlement stip-
ulation" had been executed with the Painters subject to the approval of the
General Counsel. This stipulation, which was later approved by the General
Counsel and received in evidence, provided, in substance, that the Painters,
although denying the commission of any unfair labor practices, would not re-
strain or coerce the employees of Fairmount or any of its subcontractors or
suppliers, in the exercise of their rights guaranteed by Section 7 of the Act; that
the Painters would cause its representatives to read this undertaking at the
next regular meetings of the Painters and each of its affiliated locals, and that
.upon compliance "the allegations) of the complaint filed in this proceeding
against said Painters Council No. 10 shall be withdrawn or dismissed by proper
7 The Board's denial of this petition, to which reference has already been made, had
not been communicated to the Carpenters before the hearing started.
961974-52-vol. 95-63
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motion for said purpose before the Trial Examiner ." No such motion for with-
drawal or dismissal has been made:
When the General Counsel's representative first announced the execution of
this stipulation, however, he stated that, pending the approval of the General
Counsel, proof as to "the allegations of the complaint, insofar as they relate to
the Painters council, will be held in abeyance." Whereupon, with the acquies-.
cence of all counsel , the undersigned ruled "that. so much of the complaint as
alleges unfair labor practices on the part of the Painters council in Case Number
2-CB-94 is presently severed from the trial of the remaining issues involving
the Carpenters in Cases Numbers 2-CB-94, 2-CB-97, and 2-CB-112; that pend-
ing further motion by the General Counsel, the hearing as against the' Painters
council in Case No. 2-CB-94 is suspended, subject to its possible resumption upon
proper showing, on notice to the Painters ; that the severance be accomplished
at the present time, the present record, including the transcripts and exhibits
admitted to the present point of this hearing, and the identification of any ex-
hibits that may not have been admitted, is preserved for possible use in the event
that the hearing against the Painters is resumed, but only in such case ; and by
the same reasoning, any portions of the record, including transcripts ' and ' evi-
,deuce which is developed from this point on in this hearing, shall not be a part
of the record against or on behalf of the Painters in the event of a resumption
of'the hearing on notice from the General Counsel."
After this ruling was made, counsel for the Carpenters moved that the com-
plaint against the Carpenters be dismissed because, in substance, it would be
improper for the Board, as a matter of both law and policy, to make any findings
of unfair labor practice or to issue any remedial order against the Carpenters
after the General Counsel, by the various settlement stipulations which have
been mentioned, had relieved all the other labor organizations charged by the
complaint to have been joint participants with the Carpenters in the alleged
unfair labor practices, from the possibility of the issuance of any remedial order
against them. The undersigned denied this motion.'
.
At the conclusion of the General Counsel's case-in-chief, the undersigned denied
a' motion made by the Carpenters to dismiss the complaint against it upon' the
grounds previously urged and also upon the ground that the General Counsel
had failed to present a prima facie case. At the end of the hearing, the under-
signed reserved decision upon the Carpenters' renewal of its motion to' dismiss
the complaint on all the grounds previously urged, and also upon the ground
that the General Counsel had failed to sustain' the material allegations of the
complaint by a preponderance of the evidence. This motion is now denied.
Before the hearing concluded; the undersigned granted unopposed motions to
conform the complaint, the General Counsel's bills of particulars, and the answer
of the Carpenters to the proof in. the matter of dates, places, and the, spelling of
names. Since the hearing, the undersigned has received briefs • from the. Cal-
penters and Fairmount.
Upon the entire record in the case and,from his observation of the witnesses,
the undersigned makes the following:
.8 Section 3 (d) of the Act provides that the General. Counsel "shall have final authority,
on behalf of the Board , in respect of the investigation of charges and issuance of com-
plaints under section 10 , and in respect of the prosecution of such complaints before the
Board . . . . The Board. therefore, may not review either (1) the General Counsel's
decision not to issue a complaint against any of the labor organizations named in the
charges other than the Carpenters and the Painters ; ( 2) his decision during the hearing -
not to proceed with the prosecution of the complaint against the Painters ; or (3) his
reasons for these decisions . The Board 's function is to decide upon the evidence taken
at the' hearing, simply whether the Carpenters committed unfair labor practices and, if
so, to issue the type of remedial order against the Carpenters which is required by the Act.
ESSEX COUNTY, VICINITY DIST. COUNCIL OF CARPENTERS, ETC. 981
FINDINGS OF FACT
1. COMMERCE
Fairmount Construction Company, a New Jersey corporation, is a general
building contractor engaged in the construction of private dwellings in the city.
of Newark, New Jersey. On March 12, 1947, it took title to a 50-acre tract of
hind in Newark, known as the ivy Hill tract, for the purpose of building and sell-
ing-600 dwelling units, consisting for the most part of two-family homes. By May
31, 1949, just before the beginning of the hearing. in the present case, 120 two-
family houses had been completed on the tract, 16 were in the course of construc-
tion , and sales of an undisclosed number of completed houses had amounted to
$2,772,000.
In its building operations at the Ivy Hill project between March 12, 1947, and
May 31, 1949, Fairmount's total expenditures for labor and materials amounted
to approximately $2,150,000. Of this sum, approximately $800,000 was paid by
it to its own employees as wages ; $933,224.81 was paid in the purchase of mate-
rials used by it as general contractor; and $413,778 was paid to its subcon-
tractors for materials and specialized services. A further breakdown of these
general items indicates that, of the material purchased and used by Fairmount
itself as general contractor, $403,144.47 by value was' secured, and shipped
directly to Fairmount at the building site from points outside the State of New
Jersey, and that although the remainder (of a value of $530,080.34) was obtained
from suppliers within the State of New Jersey, the suppliers themselves had
secured approximately 85 percent of these materials or $449,155.08 by value from
points outside the State of New Jersey.
The Carpenters contends that the operations of Fairmount as a building con-
tractor are purely local and that they do not constitute or affect commerce within
the meaning of the Act. However, in view of the substantial inflow of materials
to Fairmount, from States other than the State of New Jersey, it is clear and
the undersigned finds, that a disruption of Fairmount's operations would have a
substantial effect upon commerce and, therefore, that if the activities of the
Carpenters have affected Fairmount's operations, they have also affected com-
Inerce within the meaning of Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Essex County and Vicinity District Council of Carpenters , A. F. of L., is a labor
organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Carpenters' refusal to bargain and its attempt to cause discrimination by
Fairmount
1. The appropriate unit and representation by the Carpenters of a majority of the
employees therein
The complaint as amended at the hearing alleges, the Carpenters admits,' and
the undersigned finds that (1) on or before May 18, 1948, the Carpenters was des-
ignated and selected as collective bargaining representative by a majority of Fair-
In its answer as- amended at the hearing, the Carpenters expressly admitted the
appropriateness of the unit set forth in the amended complaint, and, according to the
statements of its, counsel at the time of amendment, intentionally omitted any denial
of the allegation of the'conrplaint that the Carpenters had been designated and selected
as collective bargaining representative by a majority of the. employees in that unit.
982 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
mount's employees in an appropriate unit for the purposes of collective bargain-
ing, consisting of all carpenters at the Ivy Hill project including weatherstrippers,
floorlayers, and linoleum layers; and (2) that on or before May 18, 1948, the
Carpenters was therefore the exclusive bargaining representative of the em-
ployees in this appropriate unit. In accordance with the provisions of Section
2 (2) and (11) of the Act, with the apparent intention of the parties in the
present case, and with the consistent practice of the Board, the undersigned also
specifically finds that supervisors, as defined in Section 2 (11) of the Act, are ex-
cluded from the appropriate unit.
2. The issues and the background
As has already been noted, the complaint as amended alleges in substance, and
the Carpenters' answer as amended denies, that, by demanding a contract with
Fairmount which would either have prevented the hiring of nonunion employees
or given preference in hire to union members, and by supporting its demands with
a strike accompanied by mass picketing, threats, violence, and damage to prop-
erty, the Carpenters, before, on, and since May 18, 1948, has refused to bargain
'in good faith with Fairmount and has attempted to cause Fairmount to discrimi-
nate against its employees, thereby committing unfair labor practices within the
meaning of Sections 8 (b) (3) and 8 (b) (2) of the Act, respectively. The
Carpenters is thus charged in the complaint with the commission of unfair labor
practices in connection with the contract demands made by it in 1948. However,
Fairmount's relations with the Carpenters and other A. F. of L. unions during
the preceding year provide a background which must be considered in an ap-
praisal of the Carpenters' 1948 contract demands.
In February and early March 1947, just before Fairmount began construction,
Business Agent 'Gene O'Horo of the Carpenters and Vice-President Arthur Padula
of Fairmount discussed the terms and conditions under which carpenters would
work on the Ivy Hill project. As the basis for their discussion, O'Horo presented
to Padula a copy of an existing contract between the Carpenters and the Asso-
ciated Contractors of Essex County, Inc., an organization of building contractors
of which Fairmount has never been a member. Although Fairmount and the
Carpenters did not execute a written contract, O'Horo and Padula reached an
understanding in March 1947 that Fairmount would pay the prevailing union
rates of pay. As a result, in order to equal the carpenters' wage rates provided
by successive contracts between the Carpenters and the Associated Contractors,
which were executed on April 1, 1946, and April 1, 1947, Fairmount paid its
carpenters $2.30 per.hour during March 1947 and then increased the rate to $2.50
per hour on April 1, 1947.
Until May 18, 1948, only members of the Carpenters worked as carpenters on
the project. As O'Horo explained it in his testimony, upon the hire of every car-
penter by Fairmount's foremen, the Carpenters' steward, pursuant to his instruc-
tions and the Carpenters' working rules, would request the man to show his
"book".as proof of his membership in the Carpenters, and if he had no "book,"
the man "would not go to work." It thus appears from the testimony of the
Carpenters ' business agent that, until May 18, 1948, the Carpenters, through their
steward and with the apparent acquiescence of Fairmount, effectively limited the
employment of carpenters on the project to members of the Carpenters to
10 For the purpose of showing that the Carpenters controlled hiring before May 18, 1948,
Padula testified that all carpenters hired by Fairmount were either furnished by the
Carpenters at Fairmotint 's request , or before hire, were referred to the Carpenters for
necessary clearance. O'Horo and Secretary John Walsack of the Carpenters denied,
however, that the Carpenters had ever been requested by Fairmount to furnish men. The
ESSEX COUNTY. VICINITY DIST. COUNCIL OF CARPENTERS., ETC. 983
Until May 18, 1948, Fairmount also dealt with a number of other A. F. of L.
unions, including Local 16 of the Bricklayers, Masons and Plasterers Interna-
tional Union (herein called the Bricklayers) and Local 502 of the International
Hod Carriers Building & Common Laborers Unions of America (herein called the
Laborers),. as the respective representatives of the different crafts employed on
the Ivy Hill project. Like the Carpenters, the Bricklayers and the Laborers also
requested Fairmount at various times to comply with the wage rates and terms
and conditions prescribed for their respective trades in contracts which each of
them had separately made with the Associated Contractors. As in the case of
the Carpenters, Fairmount in practice observed the wage rates and conditions
thus prescribed for bricklayers and laborers but never executed any contract
with either union. Until May 18, 1948, only members of the Bricklayers were
employed as bricklayers on the Ivy Hill project, although it appears that Fair-
mount hired laborers without regard to union membership.
3. The Carpenters' contract proposal in 1948
In March 1948, the Carpenters, the Bricklayers, and the Laborers each asked
Vice-President Padula of Fairmount to increase the wage rates of the members
of their trades employed on the Ivy Hill project to equal new, higher wage rates
just granted by the Associated Contractors in new contracts with each of the
unions, which contracts were to become effective on April 1, 1948.
When it submitted its demand, the Carpenters gave Padula a copy of its new
contract with Associated Contractors. Article IX of this contract provided :
It is understood between the parties to this Agreement that members of
the United Brotherhood of Carpenters and Joiners of America will not be
permitted to work for any Employer .who is not a member of the Associated
Contractors of Essex County unless such Employer has signed or agreed to
the rate of pay and other conditions as set forth in this Agreement. Signa-
tures of such Employers'shall be the properly constituted officers, a member
of the firm, or the individual Employer, as the case may be.
On March 26, 1948, Business Agent Eugene O'Horo of the Carpenters informed
Padula that the Carpenters wanted Fairmount to sign an acceptance of all the
terms of this contract, including a new wage rate of $2.90 an hour.
The General Counsel and Fairmount contend, and the Carpenters denies, that
the terms of this proposed contract and of the Carpenters' working rules and
regulations which were incorporated by reference, would make membership
in the Carpenters a condition of employment by Fairmount, contrary to the
provisions of Section 8 (a) (3) and Section 8 (b) (2) of the Act.
The assertedly objectionable provisions of the proposed contract itself were
the following : .
ARTICLE VII
Strikes and Lock-Outs
All disputes or complaints of whatever character if not adjusted by the
Subordinates involved shall be referred to a joint committee of the two
organizations for settlement and the decision of this committee shall be final
and binding. If the committee so appointed are unable to agree on the
subject in dispute, they shall provide an equitable means of Arbitration.
undersigned believes it unnecessary to resolve this particular conflict in the testimony in
view of his finding, based upon O'Horo's testimony , that the Carpenters was able to
exclude, and did exclude , the employment of any carpenters other than those who were
members of the Carpenters.
. ,
-1 fin'- __ -
984 , DECISIONS OF NATIONAIi LABOR RELATIONS BOARD-
No cessation of work shall take place for any reason except Non-Union
conditions prevail.
A Non-Union condition shall prevail when Non-Union men are employed
in any construction work where such work as they are engaged in is done
normally by Union men affiliated with the Building Trades Department of
the American Federation of Labor.
ARTICLE XI
The Working Rules of the Essex County District Council of Carpenters,
approved July 22, 1947 and the addendum to this Agreement as signed on
even date herewith and the Joint Apprentice Agreement shall be considered
as part of this Agreement.
ADDENDUM
Master Carpenters shall employ, as far as possible and legal, only such.
journeymen carpenters, machine hands and foremen, carpenters, as are
members of the United Brotherhood, carrying a Due Book issued by the
Essex County District Council. The Union agrees to supply the Employer
with Union carpenters to the extent. of its ability. It shall not be deemed
a breach of this Agreement for members of the Union to refuse to work on
jobs on which there are Non-Union workers employed.
All foremen in a shop shall be Journeymen Carpenters and members in
good standing in the United Brotherhood of Carpenters and Joiners of
America. All Assistant Foremen must be members in good standing of the .
Essex County District Council for a period of four (4) years.
The material working rules incorporated by the proposed contract were the
following :
SEC. 5. Master Carpenters shall employ, as far as possible, only such jour-
neymen carpenters, machine hands and foremen carpenters as are members
of the United Brotherhood, carrying a Due Book issued by the Essex County
District Council.
SEC. 6. All foremen in a Shop or on a Job shall be Journeymen Carpenters
and members in good standing in the United Brotherhood of Carpenters and
Joiners of America. All Assistant Foremen must be members in good stand-
ing of the Essex County [District Council] for a period of four years.
SEC. 13. No Non-Union Carpenter shall be allowed to work in this District
unless he has complied with Section 34 of the [District Council] By-Laws.
SEC. 15. Non-Union men shall be allowed to work on a job in this District
with a Non-Union carpenter without notifying the [District Council]. Any
member found guilty of violating this Section shall be fined not less than five
($5.00) dollars for each offense, at the discretion, however, of the [District
Council].
SEC. 25. No member of any of the affiliated Local Unions of this District
shall work on any job or in any shop, mill or factory, with any person who:
is employed in ally of the branches or sub-divisions of the carpentry industry
unless such person is a member of the [United Brotherhood of Carpenters &
Joiners of America] and in possession of the Due Book of this District. For
violations of this paragraph, he shall be fined the sum of ten ($10.00) dollars
and for the second offense, twenty-five ($25.00) dollars , or suspended for
three (3) months.
ESSEX ,COUNTY, VICINITY DIST. COUNCIL OF CARPENTERS, ETC. 985
4. Discussions and events prior to the strike
Upon receipt of the March 1948 demands of the Bricklayers and the Carpenters,
Padula agreed that, to show good faith pending discussion of its objections to
the proposals made by the Bricklayers and the Carpenters, Fairmount would pay
the requested increase in bricklayers' and carpenters' wage rates. As a matter
of fact, Fairmount began paying these higher rates on April 1, 1948, in accordance
with this temporary commitment, and continued doing so until May 18, 1948.
In the beginning of April, however, in order to fortify his argument against the
wage increase proposed by the Carpenters, Padula prepared, and had Fairmount's
carpenters sign, a typewritten statement that they were satisfied with the
working conditions as they had existed before April 1, 1948.
On April 5, 1948, Padula appeared before the Bricklayers' Executive Committee
and protested that the terms requested by the Bricklayers were "illegal" and that
Fairmount was not bound by the terms of the Bricklayers' contract with the
Associated Contractors, since Fairmount was not a member of that organization.
As for the Carpenters' contract proposal, Padula discussed that with O'Horo
when it was presented to him on March 26, 1948, and then, at Padula's request,
also with the Carpenters' council in O'Horo's presence on April 6. It is un-
disputed that on both occasions Padula objected to the increased wage rate,
contending that it was impossible for Fairmount to pay it and that, although the
proposed $2.90 rate might be satisfactory for commercial construction, the $2.50
rate should be continued as a secondary rate for home building. Padula testified,
and the undersigned credits his testimony in spite of denials by O'Horo and
Secretary John Walsack of the Carpenters;' that in his conversation with O'Horo
on March 26, and again on his appearance before the Carpenters' council on
April 6, he also objected to the proposed contract and its incorporation of the
Carpenters' working rules because he said they imposed illegal closed-shop con-
ditions with respect to both journeymen carpenters and apprentices; that on
March 26, O'Horo referred Padula to Article X of the proposed contract which
stated, in substance, that. inadvertently illegal provisions were to be considered
ineffective ; 'Z and finally, that on April 6, Padula told the Carpenters' council
without comment from it, that "there would have to be. an open shop" unless the
Carpenters were "properly certified," I. e., authorized to enter a union-shop
contract in a Board-conducted election among the employees under the provisions
of Sections 8 (a) (3) and 9 (e) of the Act. According to the further testimony
of Padula, which the undersigned credits in spite of denials by O'Horo and
Walsack, Padula also told the Carpenters on April 6 that he wanted an 8-hour
day and 40-hour week instead of the existing 7-hour day and 35-hour week, and
an elimination of certain practices which he termed as "featherbedding."
Fairmount received no answer from the Carpenters or the Bricklayers to the
objections which Padula thus made to their contract proposals. On May 11 or
12, however, Padula received in the mail a printed form of the Carpenters' con-
71 O'Horo and Walsack testified that Padula objected only to the wage increase at this
stage of discussion , that he did not mention the possibility of Fairmount's operating under
open-shop conditions nor discuss or question the legality of any of the clauses of the
proposed contract. It appears, however, from a report made by the Carpenters' Executive
Committee to the full Council on April 15, 1948, that, on April 6, Padula, in objecting to
the wage increase, spoke of his intention of "going open-sbop."
11 "ARTICLE X. Legality: Nothing in this Agreement is intended to be in conflict with
any Federal or State Legislation, Rules, Orders or Regulations now in effect, or which
may become effective during the life of this Agreement. If such a conflict be found,
then the Law shall prevail and this Agreement, the Addendum, the Working Rules of
the Essex County District' Council of Carpenters, and the Joint Apprentice Agreement
shall be deemed amended to the extent necessary to conform with the Law. The remainder
of the contract shall remain in full force and effect."
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tract with the Associated Contractors, together with a letter from Secretary
John Walsack of the Carpenters, requesting him to sign the acceptance form
provided at the end of the contract.
Padula thereupon asked Secretary Walsack over the telephone whether there
was "any possibility of a review" of the Carpenters' apparent decision to insist
upon the form of its contract with Associated Contractors. Walsack replied
that Padula had received. the Carpenters' final answer and that "we cannot dis-
cuss it, we cannot change it, sign [the contract] and send it back. That's what
the contract is, and that's what you can get. We're not going to negotiate with
every individual contractor in the business ... sign it or we're going to pull the
job." 1S
. Between May 10 and 18, Padula also spoke 3 or 4 times to Business Agent
O'Horo of the Carpenters. On these occasions, Padula repeated his objections
to the proposed contract, including the asserted illegality of its provisions, and
asked "could anything be done about it?" O'Horo replied that nothing further
could be done ; that the Carpenters was not going to grant Fairmount a secondary
wage rate for homebuilding ; and that the proposed contract was legal, particu-
larly in view of Article X.14
5. The strike and picketing in general
On Tuesday morning, May 18, Fairmount's carpenters, bricklayers, and laborers
came to the Ivy Hill project at 8 o'clock, their usual starting time, but did not
begin to work. When sent for by Padula, Shop Steward Bucci of the Carpenters
told Padula that "he had been instructed, no contract, no work."
At 9 o'clock that morning, Padula called the men together and told, them in
substance that in his appearances before the Bricklayers'. executive committee
and the Carpenters' council, he had "made every effort ... to correct an illegal
demand which [these unions] were making;" that he "was not going to subject
[himself] to a suit on the part of Americans who wanted the right to work and
couldn't, simply because they weren't a member of the Union ;" that the unions'
contracts with Associated Contractors were not binding upon him ; that, if the
men before him were refusing to work unless he signed the proffered contracts, he
"was declaring an immediate open shop, and anybody had the right to work,
and those who didn't want to work would be paid_off;" that what he proposed
was not "a union shop or a closed shop, but . . . an open shop until the union
had taken. the necessary steps to provide for any other working conditions" ;
and that those of the men before him who elected to stay at work, could do so
at the wage rates paid by Fairmount before April 1, but their workday and
workweek would be increased from 7 to 8 hours and from 35 to 40 hours,
respectively."
13 The findings as to this conversation are based upon Padula's uncontradicted testimony.
14 The findings in the text concerning these conversations between Padula and O'Horo
are based upon Padula's testimony that, on his complaining to O'Horo about the terms
of the proposed contract, O'Horo said that nothing could be done and that the Carpenters
would not grant a secondary wage rate; and also upon the testimony of O'Horo that (1)
O'Horo "always" told Padula that he could not vary the terms of the Carpenters' contract.
with the Associated Contractors ; (2) on May 14, Padula told O'Horo that he wanted
"to look into the legality" of the provisions of this contract; and (3. O'Horo there-
upon assured Padula that the contract was legal, particularly in view of Article X.
To this extent, the testimony of Padula and that of O'Horo is consistent and credited.
The undersigned, however, credits Padula's denial of further testimony by O'Horo that
on May 14,. Padula told O'Horo that he was then too busy to discuss the contract proposal
and would get in touch with Walsack on May 17. '
. 10 The findings in the text as to the carpenters ', bricklayers ', and laborers' refusal to
.work on May 18, and as to the substance of Padula's speech to them, are based upon the
ESSEX COUNTY, VICINITY DIST. COUNCIL OF CARPENTERS, ETC. 987
None of the carpenters, bricklayers, or laborers offered to remain at work
and they were all paid off within an hour after Padula's speech. On the following
morning, May 19, a number of new carpenters, bricklayers, and laborers had
been hired to take their places and began work on the project.
During the morning of May 18, immediately after the union employees had
refused to work and Padula had delivered his -speech to them, Business Agent
O'Horo of the Carpenters came to see Padula.1B- According to O'Horo's un-
contradicated testimony, which the undersigned credits, O'Horo asked Padula,
"Have you locked the men out?" and Padula replied, "They are not locked out,
they can go to work if they wish at the old rate, otherwise I am paying them
off. . . ." Padula testified (and the undersigned 'credits his testimony) that
O'Horo also said in' substance that Padula "wouldn't have a chance" if he
thought he "was going to bust the unions" ; that Padula then said that he would
"take his chances rather than violate the law" by granting a closed•shop ; and that
O'Horo replied that there was nothing in the contract that violated the Taft-
Hartley law; -
On Tuesday morning, May 18, there was a meeting of the Board of Business
Agents of the Building Trades Council, of which the Bricklayers, but not the
Carpenters nor the Laborers, was a member. Fraser Holzlohner, business agent
for the Bricklayers and also president of the Building Trades Council, had
invited Business Agent O'Horo of the Carpenters to attend. Before O'Horo
arrived, however, the business agents, upon Holzlohner's report that Fairmount
had "paid off the Union men and declared the [Ivy Hill]. project an open shop
job," passed a resolution "that a Picket Committee be appointed to take charge
and each Trade supply pickets." The resolution also designated a "committee"
consisting of the "Masons [i. e., the Bricklayers], Teamsters, Plumbers, Elec-
tricians, and Laborers." 17
According to O'Horo, when he arrived at the end of this meeting, he told
Holzlohner that the Carpenters were going to picket the Ivy Hill project whether
or not the Building Trades Council did so, and, being then informed that the
Building Trades Council intended to picket, O'Horo added that he had picket
signs ready and that picketing would begin the next morning.
According to Holzlohner, the Building Trades Council and the- Carpenters
never discussed the possibility of separate picketing ; they "just worked together."
As president of the Building Trades Council, Holzlohner took general charge of
the pickets and appointed a committee of picket captains, including all the busi-
ness agents of the Building Trades Council and also Carpenters' Secretary John
Walsack, and Carpenters' Business Agents O'Horo, Swanson, and McLaren.
Under this arrangement, picketing began on Wednesday morning, May 19.1s
Of 200 or 300 pickets who appeared at the project that morning," 15 or 18 were
members of the Carpenters, who had been asked by O'Horo to serve as pickets.
uncontradicted testimony of Padula. No one else who was present at the time testified
as to these matters.
19 In his testimony , O'Horo fixed the date of this conversation and of the cessation of
work of the union employees as Monday, May 17, and not Tuesday, May 18, as Padula
testified.
The quotations are from the report of the Board of Business Agents to the Building
Trades Council. The mention in this report of the "Laborers" as being on this committee
apparently has reference to locals of that International other than Local 502 , which, as
has been noted , was not, at this time , a nrember of the Building Trades Council.
7s Details of incidents on the picket line which are alleged in the complaint to be unfair
labor practices within the meaning of -Section 8 ( b) (1) (A) of the Act are discussed in a
later section of this Report.
19 This estimate as to the number of pickets was given by Officer Grill and Sergeant
Petroll of the Newark Police Department. Padula's estimate was between 800 and 1,000.
988 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD
Some of the pickets bore sighs stating, "This job is nonunion-Essex County
Building and Construction Trades Council." The Carpenters' pickets for the
most part carried signs of the Carpenters with a similar legend. Among the
picket captains who were there that morning were Carpenters' Secretary Walsack,
and Carpenters' Business Agents O'Horo and Swanson.
Early in the morning of this-first day of the picketing, Padula asked O'Horo
why the Carpenters' pickets were carrying signs of the Building Trades Council
saying that the job was nonunion, in view of the facts that the Carpenters was
not a member of the Building Trades Council and the statement on the signs
was "in direct defiance of the law." According to Padula's uncontradicted
testimony as to this conversation which the undesigned credits, O'Horo replied,
"that all of the forces of the Building Trades Council were going to be used
to force [Padula] to sign that closed-shop agreement and that if [Padula] had
any brains before [he] went bankrupt, [he] would sign it."
Padula further testified, and the undersigned credits his testimony in spite
of an oblique denial by O'Horo 20 that (1) later in the morning, O'Horo told
the purchaser of one of the almost completed homes on the project that the
picket line would not be moved away from this house because "we are stopping
all, of these operations, and will continue to stop him until he goes union";
and (2) at about the same time, O'Horo told some of the pickets who asked
why they had to picket, that it was a question of the life or death of the
union, that Padula was trying to break' the union, and "that they had
everybody in the Building Trades Council see to it that they would break
[Padula] . . . in order to see to it that the nonunion scabs got the hell off the job."
At approximately 1 o'clock-that afternoon, Padula had his superintendent nail
to one of the buildings under construction a sign which stated, "This is America.
This is not a nonunion shop. This is an open shop. For any American who
wants to work." For more than 3 months thereafter, this sign was kept on the
outside of this building.
The picketing continued, with O'Horo supplying volunteers from among the
members of the Carpenters to serve along with pickets from the other unions.
O'Horo himself appeared at the project with the pickets practically every day'
from the beginning and gave instructions as to their line of march and their
carrying of signs. Carpenters' Secretary Walsack and Carpenters' Business
Agents Swanson and MeLaren also "spent considerable time" on the picket
line, as did "members of the [Carpenters] council and Executive Board." 21
O'Horo reported to the Carpenters' council at successive meetings beginning
•with May 20, his establishment of the picket line, his recruitment of pickets,
his own participation and that of the other Carpenters' officials in the picketing,
and the need for more pickets, because (as his report on June 3 put it) "the
building trades are cooperating in this affair and the Carpenters must do their
share."
On June 12, the first step was taken for the Bricklayers and Carpenters to
assume the primary burden of maintaining the picket line, with such help as
might be received from the other unions. On that date, according to the min-
utes of the Bricklayers' Executive Board, the Carpenters and the Executive
Board of the Bricklayers held a joint meeting at which they decided that each
would thereafter supply 25 pickets and would request "all other unions .. . to
ask their members to go on the picket line whenever possible." This "plan"
21 O'Horo, denies merely that he was at the street intersection where Padula testified
that the conversations described in the text had occurred.
21 The quotations in the text are from a report made by O'Horo to the Carpenters'
council at its meeting on June 3.
ESSEX COUNTY, VICINITY DIST. COUNCIL OF CARPENTERS, ETC. 989
was approved by the Board of Business Agents of the Building Trades Council
on June 15. According to the testimony of Holzlohner, which the undersigned
credits, picketing by crafts other than the Bricklayers and the Carpenters was
voluntary thereafter and Secretary Walsack.of the Carpenters took over the
direction of the picket line. Consistent with this decision, on June 17, the
Carpenters' Council set up a committee, which began functioning on or about
June 22 or 23, in the assignment and supervision of pickets, and checking their
appearance on the line. After June 22 or 23, about 8 carpenters served on
each shift of the picket line with pickets from other labor organizations.
6. The mediation meeting of May 25
On May 25, at the request of Padula, Chairman Walter T. Margetts, Jr., and
Member Sal Maso of the New Jersey State Mediation Board (herein referred
to as the Mediation Board) met with Padula, his attorneys (John Yauch and
James Fagan),42 and President Holzlohner and Vice-President Vohdin of the
Building Trades Council, O'Horo of the Carpenters, and Dan Petrucelli of
the Laborers.
At the beginning of the meeting, either Padula or Yauch, his attorney, read
a memorandum in which Fairmount requested :
(1) Assurance that the union conferees represented all members of the
Building Trades Council, the Carpenters, and the Laborers ;
(2) provisions for the enforcement of any agreement reached;
(3) dissipation of bad feeling on both sides;
(4) an "open shop" in which union and nonunion workers were'to work
along side of each other at the same wage scale ;
(5) a full apprentice program in accordance with, the Veterans' Admin-
istration's Plan, for both veterans and non-veterans, with one apprentice
for each five journeymen, including laborers ;
(6) recognition by the unions of the right of any employee to join the
appropriate union within 30 days after application ; and
(7) the right of Fairmount to complete building on the Ivy Hill project
at the wage rate existing prior to April 1, 1948, to eliminate paid holidays,
and to extend the work day from 7 to 8. hours, and the work week,. from
35 to 40 hours.
So far as Holzlohner's authority in the meeting was concerned , it is undis-
puted that he told the conferees that he was acting as "spokesman" or "mouth-
piece" of the unions involved in the controversy, including the Carpenters but
not the Laborers, 3 and that during the conference he acted and spoke in that
capacity without'any expression of disagreement by O'Horo of the Carpenters,
who was. present throughout the session. The undersigned, therefore, finds that
the pertinent unchallenged statements as to the position of the unions as a
rd Three of Fairmount's supervisors were also present.
zi In accepting Padula's suggestion of a meeting to settle the Ivy Hill dispute, Holzlohner
had made substantially the same statement in a telegram sent to Padula on May 22 :
In reply to your telegram of yesterday, please be advised that the writer speaks
for the entire skilled craftsmen that are members of the Essex County Building and
Construction Trades Council and the Carpenters who are presently not members of
the above mentioned Council. I am ready at any time to sit down with a committee
of one from each of the skilled trades formerly employed on your project at your
convenience . I will not represent the Labors (Sic) Union having jurisdiction of
your project because of the business agent and the Union were and are still suspended
on account of a stoppage of work by their organization and jurisdictional disputes. '
-990 DECISIONS- OF NATIONAL'-LABOR RELATIONS BOARD
group, as well as the consistent.statements of O'Horo, are certainly attributable
to the Carpenters .^
A 4-hour discussion of Padula's proposals, and also possible compromises,
followed Holzlohner's statement concerning his role in the meeting, and resulted
in the union-conferees' agreement, on Padula's suggestion, to submit the follow-
ing 6-point settlement to their, respective organizations and to return to the
Mediation Board with their answers on Tuesday, June 1:
(1) Thirty-two two-family houses will be built at working conditions
prevailing prior to April 1, 1948.
(2) Bygones will be bygones. (No discrimination by either side.)
(3) Upon completion of 32 houses, Fairmount will pay new scale in effect
after April 1, 1948 and will employ Union labor provided, however, Fair-
mount can obtain mortgage financing which would enable the erection and
sale of houses.
(4) If Union cannot supply men, Fairmount to be permitted to hire men
at the prevailing rate.
(5) No individual publicity by either side-only by joint statement.
.(6) Expiration date-April 1, 1949.
Point 4 and also, in part, Point 3 of this proposed settlement obviously repre-
sent a modification of the "open shop" proposal made by Padula at the beginning
of the meeting. The General Counsel and Fairmount contend, upon.the basis of
testimony given by Padula and Yauch, which will shortly be discussed, that this
modification of Padula's "open shop" request was the result of the Union con-
ferees' opposition to the "open shop" 'principle during the meeting of May 25
and their insistence, instead, upon the terms and conditions of the Carpenters'
contract with Associated Contractors or at least some form of union security.
Whether this is so, depends of course upon the substance and credibility of the
testimony not only of Padula and Yauch but also of Holzlohner and O'Horo,
since these four were the only witnesses who testified as to what happened at the
meeting of May 25, 1948.
Padula and Yauch testified. that the conferees discussed Padula's request for an
unequivocal "open shop" provision and his attack, in this connection, upon the
legality of the Unions' proposals embodied in the Carpenters' contract with the
Associated Contractors, and that it was after this discussion that Padula sug-
gested Point 4 as one of the bases for settlement. O'Horo, too, testified that
this was so, although he could not "recall the whole discussion," and therefore
gave none of its substance.
According to Padula's testimony, during the discussion of his "open shop" pro-
posal, Holzlohner said, with O'Horo nodding assent, that Padula was a God
damn union buster ; that Holzlohner was not going to tolerate any individual
breaking up unionism and the trade movement ; that "who the hell did [Padula]
think he was, as an individual contractor, to allow nonunion men to work along
side of union men" ; that "no s-o:b" was going to work on that job unless he was
a hundred percent union man; that if Padula didn't like it, he could jump out of
24 It is consequently unnecessary to resolve a conflict in the testimony as to. whether
(as Padula and Yauch testified ) Holzlohner said that he was authorized to speak for,
and represented, the Building Trades Council 's unions and the Carpenters , or whether (as
O'Horo testified) Holzlohner said that he was the spokesman for the group but that he had
no authority for any particular organization and that O'Horo and Petrucelli were there
to represent the Carpenters and Laborers respectively.
25 There is no dispute as to the substance of this proposed settlement . It is set forth
in the text exactly as it was summarized by Chairman Margetts of the Mediation Board
in a memorandum mailed by him to the parties on May 26, the day following the meeting.
ESSEX COUNTY , VICINITY DIST. COUNCIL OF CARPENTERS , ETC. 991
the seventeenth story window ; that the unions didn 't recognize any Taft-Hartley
Act; that this was going to be a 100 -percent closed shop and union shop; and
that there was no sense in talking about it anymore.
Yauch testified that, during the discussion of Padula 's "open shop" proposal,
either Holzlohner or O'Horo said they would never go along with nonunion
men working alongside of union men ; that Padula wasn 't big enough to bring
about such a result ; that the closed shop was proper ; and that they . weren't
going to have someone come in and break down these things that they felt were
important to unionism.
Differing with the other three witnesses who testified as to this meeting, Holz
lohner said at several points in his testimony that he did not recall any discus-
sion of Padula 's "open shop" proposal . The further gist of Holzlohner 's testi-
mony, constructed most favorably for the Carpenters , is that (1) the Unions asked
for the same contract terms they had gotten in their contracts . with the Associ-
ated Contractors ; ( 2) Padula abandoned his "open shop" proposal without
discussion or argument , and suggested as Point 4 of the proposed settlement, that,
"if Union cannot supply men , Fairmount to be permitted to hire men at the pre-
vailing rate"; (3) since Point 4 as thus worded , was in accord with the Unions'
position , their representatives tentatively agreed to accept it; and (4)
there was no discussion as to whether Fairmount was to be required under
Point 4 to hire only union members if they were available because, as Holzlohner
testified , "I settled that point very quickly by saying that under the Taft-Hartley
law he could hire whoever he pleases and that we weren't going to get involved
Under the Taft-Hartley law, because that's one of the things about the Taft-
Hartley law that I specifically understood."
The undersigned cannot accept the substance of this testimony of Holzlohner
so far as it conflicts with that of the testimony of Padula , Yauch, and O'Horo.
Point 4 of the settlement proposal by Padula was clearly a provision for the pref-
erential hiring 'of union members and inconsistent both with the "open shop"
principle and the provisions of the Act. It is incredible , although Holzlohner
would have the Board believe from his testimony , that Padula by proposing
Point 4 thus abandoned his attempt to secure an "open shop" without argument
or discussion ; that Holzlohner and the other union representatives failed to
recognize Point 4 as a preferential provision which would have required Fair-
mount to hire only union members if they were available ; or, finally , that, in ex-
plaining his tentative acceptance of Point 4, Holzlohner made the obviously in-
appropriate comment that "under the Taft-Hartley law [Padula] could hire
whoever he pleases."
Upon the foregoing consideration of the evidence , the undersigned finds, con-
trary to the testimony of Holzlohner , that ( 1) as Padula , Yauch , and O'Horo
testified , the conferees discussed Padula's "open shop" proposal and his attack
upon the legality of the Unions' proposals , and (2 ) as Padula and Yauch
testified , Holzlohner strongly opposed Padula's "open shop " principle , stating in
.substance , with the assent of O'Horo of the Carpenters , that the Unions would
not consent to a situation in which nonunion men worked alongside of union
men, that they insisted upon closed-shop conditions as proper and necessary to
the existence of unionism , and that they would talk no further about the matter..
The undersigned further finds, upon the testimony of Padula , that it was this
attitude of the union representatives , including O'Horo of the Carpenters, that
caused him to suggest Point 4 as a solution of this particular element of the
dispute.
When the union representatives told Padula at this meeting on May 25 that
they would have to submit the proposed 6-point settlement to their respective
992 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
organizations and then return with their answers on June 1, Padula suggested
that, in the meantime, the picket line be reduced to 10 and that, in return,
there would be no deliveries of material to the project. The union conferees,
however, refused to limit the number of pickets and the matter was dropped.
7. Events After May 25
In the afternoon or evening of May 26, several. trucks appeared at the project
to. deliver lumber. The pickets, including O'Horo and Holzlohner, gathered
around the trucks and protested that Padula had broken a promise not to secure
materials until the Unions had given-their answer to the settlement proposals.
Upon being called to the scene by Padula, Attorney Yauch reminded O'Horo and
Holzlohner that no such promise had been given because the unions had refused
to reduce the number of pickets. Holzlohner said that the deliveries might
jeopardize the Unions' acceptance of the proposed settlement. Yauch then per-
suaded Padula not to. take delivery of the lumber.
The executive boards of the Carpenters and of the Bricklayers conferred
together on May 28 and decided. merely to poll each delegate to the councils upon
the question of whether the proposed 6-point settlement should be accepted. The
poll was apparently not taken ; in any event, no decision was reached.
Padula testified and O'Horo denied, that at .about 7 p. m. on Saturday, May
29, O'Horo telephoned Padula that the Carpenters had rejected the 6-point
proposal. According to Padula,. he thereupon ordered lumber to be delivered
early in the morning of Tuesday, June 128 According to'O'Horo, he was
notified by-one of the business agents of the Carpenters on Monday evening,
May 30, that Padula intended to take deliveries of materials early the following
,morning. He therefore appeared at the project at about 2 o'clock in the morn-
ing with a number of pickets. In spite of their protests to Padula, the de-
liveries were made.
Although telegrams had, in the meantime, been sent by the Mediation Board
to the union representatives and to Padula, postponing the scheduled meeting
on June 1 from 9 a. in. to 2 p. m., O'Horo and Holzlohner had not yet received
them and therefore they went together to the Mediation Board's office at 9
a. m. to inform the Mediation Board and Padula that, because of the delivery
of materials that morning, the Unions rejected the 6-point settlement. Finding
no one at the office, Holzlohner telephoned this notification to Yauch 27
No further meetings to attempt to. settle the dispute between Fairmount and
the Unions were held and the picketing continued.
James Williams, a member of the Carpenters, had been employed by Fair-
mount before the cessation of work on May 18. He returned to work for
Fairmount as a carpenter during June and worked alongside the nonunion
carpenters whom Fairmount had hired. Williams and Superintendent Nick
Blenx, who was also a member of the Carpenters, received notices from the
Carpenters that they were charged with violation of Section 15 of the Car-
penters' Working Rules, . and that hearings would be held in their respective
cases on July 9 and June 3. The specifications of the bases of the charges
stated in Williams' case, that he had "worked on the job at Ivy Hill, June 11,
21 Since May 30 fell on a Sunday, the following day; Monday , May 31 , was celebrated as
Decoration Day.
"The undersigned finds it unnecessary to resolve the conflicts of the testimony as to
whether O'Horo did or did not inform Padula on Saturday, May 29, of the Carpenters'
rejection of the proposed settlement. The problem raised, if any, concerns the good faith
of the employer, which , for reasons stated in the next subsection of this Report,.is not
in issue.
ESSEX COUNTY, VICINITY DIST. COUNCIL OF CARPENTERS, ETC. 993
1948 and has continued to do same with nonunion men" ; in Blenx's case, they
stated that he had "worked on job at Ivy Hill with nonunion men from May
18, 1948, after the job was declared open-shop." Failing to appear for these
hearings, Williams and Blenx were thereafter notified in letters from the
Carpenters that they had been fined and expelled from membership in the
Carpenters.
8. Conclusions
The only contract proposal made by the Carpenters to Fairmount was that
Fairmount accept in full and without change the terms of the Carpenters'
existing contract with Associated Contractors. The section of this contract,
called the Addendum, provided that "Master Carpenters shall employ, as far
as possible and legal, only such journeymen carpenters . . . as are members
of the United Brotherhood, carrying a Due Book issued by the Essex County
District Council... . ." 28
Laying aside for the moment the reference to legality, this language of the
Addendum requires the Employer to hire members of the Carpenters in pref-
erence to nonmembers, and to discharge and replace any nonmembers it might
have in its employ whenever members become available for hire. A contract be-
tween Fairmount and the Carpenters containing the Addendum, therefore,
would have obligated Fairmount to recognize membership in the Carpenters
as a condition of hire and continued employment whenever members of the
Carpenters were available, and thereby to discriminate against nonunion
applicants for hire and nonunion employees in the tenure of their employment.
Such a contract with the Carpenters would have been illegal under Section
8 (a) (3) of the Act because, contrary to the proviso thereof which permits the
execution and performance of only a strictly limited employee-authorized con-
tract relating to union membership as a condition of employment, (1) there had
been no authorization of the Carpenters' proposed contract by a majority of
all the eligible, affected employees in a Board-conducted election pursuant
to Section 9 (e) of the Act, and (2) the Carpenters' proposed contract would
have made union membership a condition of original hire and of continued employ-
ment from the beginning of employment and not merely, as the proviso permits,
"on or after the thirtieth day following the beginning of employment or the
effective date of such agreement, whichever is later" 29
Counsel for the Carpenters points to the language of the Addendum and
also of the general similar provision of Article X 2° of the contract proposed by
the Carpenters, that any illegal provision of the contemplated contract would
be ineffective. He argues from this language, in substance, that since any
illegal employment preference provision would thus, in any event, be ineffective,
its proposal by the Carpenters cannot be held to have been improper or illegal.
This argument is rejected. Speaking of the effect of a similar nullity clause
upon an illegal union-shop clause, the Board said in Reading Hardware Corpora-
tion (85 NLRB 610) :
... Nor are the union-shop provisions of the contract rendered ineffective
by virtue of [the nullity clause]. In the absence of a specific clause ex-
28 See also Section 5 of the Working Rules which were incorporated in the contract by
reference . This Working Rule contains language identical with that of the quoted portion
of the Addendum, except that the words "and legal" are omitted.
29 See Daniel Hamm Drayage Company, Inc., 84 NLRB 458, for a discussion of the general
scope of the proviso to Section 8 (a) (3) of the Act. As to the illegality of preferential
hiring arrangements , see Hawley & Hoops, Inc., 83 NLRB 371 ; Morley Manufacturing
Company, 83 NLRB 404.
30 See footnote 12, above.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pressly deferring application of the union-shop provision, we believe that
this clause can only be construed to mean that, unless and until a
tribunal authorized to interpret and administer the law determines that
a' particular discharge for nonmembership in the Intervenor is unlawful,
the Union-security provisions of the contract are fully effective. Moreover,
it is immaterial that, in fact, no action has been taken pursuant to the Union-
security provisions, as the' mere existence of an illegal Union-security pro-
vision acts as a restraint upon those desiring to refrain from union activities.
(Lykens Hosiery Mills, 82 NLRB 981; Unique Art Manufacturing Co., 83
NLRB 1250.)
The undersigned therefore finds that in spite of the saving clause, the Carpen-
ters' contract proposal was illegal because of its inclusion of a preferential
employment provision," and that Padula, while perhaps technically inaccurate in
his description of it as a "closed-shop" proposal, quite properly objected to its
illegality.
In spite of Padula's objections, the Carpenters insisted that he accept and
sign the complete form of contract without change. Thus, after Padula had
fully stated all his objections in his meeting with the Carpenters' Council on
April 6, he received no reply until the form of contract was again sent to
him by Secretary Walsack with the repeated request that he sign it. Then,
upon his protest, both Business Agent O'Horo and Secretary Walsack told him
that the form of contract could not be changed and Walsack said also that if,
Fairmount did not sign it, the Carpenters were "going to pull the job."
Contrary to the contention of counsel for the Carpenters, the undersigned
finds that the cessation of work by the Carpenters which followed on May 1S
was a strike and not a lockout, since the carpenters refused to work and the Car-
penters' steward explained to Padula that "he had been- instructed, no con-
tract, no work." It is true that Padula then told the men that they might
continue to work, if they chose, under an "open-shop" agreement, at the lower
hourly wage rate paid before April 1, and on a longer workday and workweek..
Whether Padula, by thus unilaterally changing existing terms and conditions
of employment, converted the strike from an economic strike into an unfair
labor practice strike is not material and, for the purpose of deciding the pres-
ent case, the question need not be answered. For the strike had begun in sup-
port of the Carpenters' demand, among others, for an illegal preferential em-
ployment provision in the contract and it continued in support of the, same
demands even though it be assumed that Padula's speech created an additional
strike objective, I. e., the establishment of the strikers' right to reinstatement
upon the existing terms and conditions of employment until new terms might be
agreed upon by their employer and their bargaining representative.
The' evidence shows clearly that one of the most important strike issues
(if not the most important'in the minds of the contestants) continued to be
whether the Carpenters would obtain employment preferences for its members
or whether Padula would have his way with an open shop. The "open-shop"
sign erected by Padula at the project served to dramatize and give sharp,, un-
deniable definition to this point of conflict, as did Business Agent's O'Horo's and
Walsack's conversations with Padula during the picketing. Finally, when all
the points in controversy were discussed at the mediation board meeting on
May 25 in an attempt to end the work stoppage and to reach a general agree-
"This ' term is used rather than "closed-shop provision," since strictly speaking, the
exclusion of nonmembers from employment was required by the Addendum. in the contract
proposal only when members were available for hire.
ESSEX COUNTY, VICINITY DIST. COUNCIL OF CARPENTERS, ETC. 995
went; the union group, with Holzlohner as spokesman and Business Agent
O'Horo present as the Carpenters' representative, stubbornly opposed Padula's.
"open-shop" proposal and the, elimination of the employment preference de-
manded by the Carpenters, with the result that, although the union representa-
tives tentatively accepted and agreed to submit to their respective organizations.
compromises on all other points in the dispute, they stood firm for employment,
preference, and Padula was obliged to accept it as the only hope of reaching any-
agreement with the union.
Although it is thus clear, and the undersigned finds, that the Carpenters in-
sisted upon Fairmount's granting illegal employment preference to the point of
making it a condition for the reaching of any agreement with Fairmount, and
supported this particular demand as well as its other demands with a strike
threat and then an actual strike, counsel for the Carpenters asserts that under
the facts of the case, the Carpenters did not violate either Section 8 (b) (2) or
Section 8 (b) (3) of the Act. He contends, in substance, that the real dispute.
between the Carpenters and Fairmount was over wage rates ; that Fairmount
raised objections to the Carpenters' employment preference request not because-of'
actual opposition to It but merely for trading purposes in resisting the Car-
penters' wage demands ; and, finally, that when compromises acceptable to
Fairmount on the wage question seemed possible, Fairmount voluntarily con-
ceded the employment preference and was not coerced to do so by the Car-
penters. Reduced to its simplest terms, the Carpenters' argument is that, by its.
insistence upon the preferential employment provision (1) it cannot be held to.
have attempted to cause discrimination by Fairmount in violation of Section 8.
(b) (2) of the Act because Fairmount was actually. willing to, grant the preferen-
tial employment arrangement, and (2) that it cannot be held to have refused to.
bargain with Fairmount in violation of Section 8 (b) (3) of the Act because of,
Fairmount's bad faith in raising insincere objections to the preferential employ-
ment provisions. The undersigned rejects both of these arguments. As the.
Board has recently held, neither the good faith of the employer 3: nor its willing-
ness to accede to the illegal demands of a union u is in issue in this type of case,
where the question is solely whether a union has violated the Act through its.
insistence upon an illegal contract.
In conclusion, the undersigned finds that (1) the Carpenters demanded and,
insisted upon Fairmount's signing and accepting a contract making membership,
in the Carpenters a condition of employment whenever carpenter members were.
available for hire; (2) in support of this demand, the Carpenters threatened.
a strike and did strike at Fairmount's Ivy Hill project; (3) in negotiations.
for, a settlement of the strike and a general agreement, the Carpenters refused,
to consider any agreement which did not include the illegal preferential employ-
ment, provision sought by it; (4) by the foregoing action, the Carpenters,
in violation of Section 8 (b) (2) of the. Act, attempted to cause Fairmount to,
discriminate against employees in violation of Section 8 (a) (3) ; and (5),.
by the foregoing action, the Carpenters, in violation of Section 8 (b) (3) of the
Act, also refused to bargain collectively with Fairmount 84 .
s American Radio Association , 82 NLRB 1344.
33 International Typographical Union and the Baltimore Typographical Union Number 12,
87 NLRB 1215 , footnote 10.
34 International Typographical Union and the Baltimore Typographical Union No. 12,.
87 NLRB 1215 ; National Maritime Union, 78 NLRB 971 Amalgamated Meat Cutters,
81 NLRB 16i; United Mine Workers, 83 NLRB 916; American Radio Association, 82 NLRB.
1344 ; International Typographical Union (ANPA), 86 NLRB 1041; H. Milton Newman,
85 NLRB 725.
961974-52-vol. 95-84
996 . DECISIONS .OF. NATIONAL LABOR RELATIONS BOARD
B. Restraint'and coercion
The picketing by the Carpenters and the other unions occurred principally on
Midland Place, in an 1,180-foot block between two thoroughfares : Mt. Vernon
Place on the north and Irvington Avenue on the south.
Midland Place was a 30-foot gravel street. By the time of the picketing,
Fairmount had almost completed all the buildings along the entire east side of
the block and was engaged in the earlier stages of construction of 10 two-family
homes on the southernmost 300-foot portion of the west side of the block. Not
only was material for use in this latter group of houses piled on the lots, but
cement and lumber had also been deposited part way into the westerly portion
of the street bed.
The project also extended east and west of Midland Place. Fairmount had its
office and had already completed homes on Norman Road, which was imme-
diately to the east of, and parallel to, Midland Place. The portion of the project
to the west of Midland Place, on which Fairmount had not yet begun construc-
tion, extended uphill roughly 325 feet to. the property line of a hospital. In this
area, Fairmount had laid out but had not yet improved or opened, a 30-foot
street known as Tuxedo Parkway, which was also parallel to Midland Place.
Deliveries of material to the construction underway on Midland Place were
niade by way of Mt. Vernon Place or Irvington Avenue. Fairmount's employees
came to work from Mt. Vernon Place or Irvington Avenue. They then either
came along Midland Place to the building site, or, parking their cars in the area
designated for Tuxedo Parkway, crossed the lots to Midland Place.
As has been found, on May 19, the first day of the picketing, there were 200 or
300 pickets, including 15 or 18 members of the. Carpenters, and Carpenters' Sec-
retary Walsack and Business Agents O'Horo and Swanson. Among the officials
of other unions who were also present were Holzlohner (president of the Build-
ing Trades Council and business agent of Bricklayers' Local 16), Vohdin (vico
president of the Building Trades Council and business agent of the Lathers'
Local), Jack Lee (an officer of the Building Trades Council and business agent
of the Plumbers' Local), Fox (secretary of the Building Trades Council and
business agent of the Tile Setters), and Cusano (business agent of the Teamsters'
Local). During that day, these 200 or 300 pickets walked, from 4 to 6 abreast,
back and forth on the street bed and in front of the houses under construction.`
On the following day, May 20, the number of pickets remained the same but,
upon the request of the police to Holzlohner, they patrolled in single file in
front of the houses under construction, marching up one side of the street and
down the other. This was thereafter the general course of the picketing. The
number of pickets decreased to several hundred in the second week, 75 in the
third week, and then tapered off to about 50 in the seventh week or so. 'Picketing
was still in process at the time of the hearing.
The General Counsel's witnesses testified concerning a number, of acts com-
mitted and threats made on the picket line, near the picket line, and also away
from the picket line, either by specifically named persons or by persons identified
only as being then or just previously on the picket line. There were no denials
at the hearing of the material substance of any of this testimony, either from
the alleged participants or from bystanders named by the General Counsel's
witnesses. Indeed, none of the alleged, named participants even appeared. as'a
6 This finding as to the formation of the pickets in their patrol is made upon the'
testimony of Padula to the effect that the pickets spread across the entire street, and
also upon the testimony of Sergeant Petroll of the Newark Police Department that they
marched in "squad formation ; 4, 5, or 6 abreast."
ESSEX COUNTY, VICINITY DIST. COUNCIL OF CARPENTERS, ETC. 997
witness at the hearing although no claim was made by the Carpenters that any
of them was unavailable. Consequently, the following findings of fact are
made upon the credible, uncontradicted testimony of witnesses for the General
Counsel. -
(1) As the pickets patrolled on May 19 and 20, they called out to the Fair-
mount employees working on the adjoining houses, including laborers,. who were
mixing mortar in the box in the street, that they would kill the workers, break
their heads, "get their families," and "get" them on the way to the bus line as
they went home. In passing the laborers at the mortar box,- the pickets
"brushed" against them as they made these threats, and some threw gravel
into the mortar and into the faces of the laborers.
(2) On May 20 or 21, the pickets threw down a barricade, consisting of a plank
set on two oil drums, while Jack Santos, a mason who was mixing mortar, had
erected when he saw the pickets' treatment of the laborers. One of the pickets
pushed Santos and asked him, "why don't you get out of here?" The pickets
then walked all around the box as Santos worked, and threw gravel into the
mortar and his face.'6
(3) On May 20 or 21, Lou Schillenbracco, a carpenter, formerly employed by
Fairmount, who was known as "Greenberg" to the men, called Dante Campesi,
a working carpenter, over to the picket line during lunch time and said, "I'm
warning you, you ought to get off the job before you get into a lot of trouble."
. (4) On May 20, the pickets in their patrol pointed to Frank Bonanno, a work-
ing carpenter, whose picture had been published with a newspaper interview
dealing with the strike, and said, "We want you. We're going to get you.,,
When Bonanno left work that afternoon, he was followed by six men from the
picket line along Irvington Avenue to the corner of Norman Road. One of the
men pushed Bonanno, sticking out his foot to trip him at the same time, and
said Bonanno was a "wise guy" and that instead of getting his picture in the
paper the following morning, he "would wind up in the morgue."
(5) During the afternoon of May 24,. while working in one of the houses
under construction on the west side of Midland Place, Superintendent Hamm
saw three men coming from the picket line and approaching working employees'
cars which were parked in the area behind the houses where Tuxedo Parkway
was laid out. The three men began breaking car windows with rocks. Hamin,
joined by Assistant Vice-President Rohach and employee Campesi, chased the
three men up the hill towards the hospital grounds where they caught one of the
men, who, upon his arrest, was identified as Business Agent McLaren of the
Carpenters. Examination of the parked cars revealed broken windows and
windshields, flat tires, broken door locks, and dented doors. The undersigned
finds that this damage was done by Business Agent McLaren of the Carpenters
and the group of pickets with him "
(6) At quitting time about 4: 30 p. in. on May 20, Business Agent Swanson
of the Carpenters, accompanied by approximately 20 men, some of whom carried
picket signs, told Norman Redman, a working carpenter, as Redman was enter-
ing his parked automobile on Midland Place, south of Irvington Avenue, that if
'° These findings concerning the mortar box incidents involving Santos are based upon
his testimony , according to which O'Horo stood nearby but did not participate. O'Horo
testified merely that although he stood there, he saw no stones thrown.
87 These findings concerning the damage done to the parked cars by McLaren are based
upon the uncontradicted testimony of Hamm, Rohach, and employees Campesi and
Edmonds. As in the cases of the other incidents described in the text, McLaren, the
alleged wrongdoing participant, did not testify nor was it claimed by the Carpenters that
he was unavailable.
998 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
Redman worked the next day he "would go out stiff" and that Padula would
not pay his hospital or funeral expenses . At the . same time, the men with
Swanson rocked Redman's car and shouted "turn it over." as
(7) At 9: 45 or 10 a. in. of May 19, a lumber company truck with a load of
lumber for the project was stopped as it was about to enter Midland Place from:
Irvington Avenue by several hundred pickets who spread completely across Mid-
land Place. Among those present were Holzlohner, O'Horo, Walsack, Lee, and.
Ousano. Holzlohner and O'Horo were on the corner about 25 feet away from
the truck, handing out picket signs at the time. One of the pickets jumped on,
the running board of the truck and asked the driver if he wanted to be killed..
The driver started the truck slowly, the picket reached in the cab and grabbed
the steering wheel, and then, as a motorcycle policeman approached, the picket
told the driver that they would kill him if he came through. Upon the police-
man's racing his motor, the pickets opened a way and the truck was driven
through.0
(8) As has'already been noted, at 4: 30 or 5 a. in,. on June 1, several truck-
loads of lumber were delivered to the project on Midland Place where Padula.
and a number of Fairmount's employees were waiting to receive them. Two or
three hundred pickets, including O'Horo, Walsack, and Volidin were also waiting.
Before the truck arrived, O'Horo, Holzlohner, and some.of the union representa-
tives told Padula that they were going to kill him, to break him, and to prove
to him that nobody was going to get away with an open shop. As the trucks
turned into Midland Place, the pickets "milled around in the middle of the
.street" and jumped on the trucks. The deliveries were made, however. At
approximately 6:30 a. in., as Padula and his employees were unloading the-
trucks, the union representatives, including O'Horo, Walsack, and Holzlohner,
stood by while Cusano of the Teamsters told Padula they would find his body
floating down the Passaic River if he continued to operate the project on an open
shop basis.90
(9) On May 24 the pickets told employee Dodge °1 as he drove his truck into,
the project, unloaded, and left, that he would be hurt if he pulled into the project
again, and that they would "get" him and his helper.
. (10) On June 16, while employees were working on the adjacent structures,
the pickets at the corner of Midland Place and Irvington Avenue blocked and
surrounded Dodge's truck (in which •Padula was riding with Dodge), climbed
38Except for the Identification of Swanson , these findings are based wholly upon
Redman ' e uncontradicted testimony . Redman testified that he did not know who the-
leader and spokesman of the group was, but that he pointed him out a day or so later
to Padula and was told by Padula that it was Swanson . Padula corroborated Redman as
to this identification. Although he was thus charged with threatening Redman and was
not shown to be unavailable as a witness, Swanson did not appear to testify. It is
undisputed that Swanson, like O 'Horo and McLaren , was a business agent of the
Carpenters.
39The findings as to this incident are based upon the testimony of Padula . O'Horo-
testified merely that at the time this truck entered, be was several hundred feet down the-
block. Holzlohner did not testify to affirm or deny Padula ' s version of this incident.
40 These findings as to the occurrences during the June 1 delivery are based upon Padula's
testimony. Although both O'Horo and Holzlohner testified as to their appearance at
the project that morning and their later trip to the mediation board office, neither one of
them described the conduct of the pickets that morning, nor gave any. testimony as to.
what conversations, if any, they may have had with Padula. Nor did they directly deny
the material substance of any portion of Padula's testimony. O'Horo testified merely
that he had first seen Padula that morning at.5 a. in. Holzlohner testified only that
he did not arrive at the project until 7.
41 Dodge was hired by Padula to furnish his services and truck -trailer for the.bringing-
in of materials . Fairmount furnished the gasoline and a helper to load and unload
the trailer.
ESSEX COUNTY, VICINITY DIST. COUNCIL OF CARPENTERS, ETC. 999
on the running boards, opened one door and attempted to open the other, tried
to pull Padula out of the cab, and told Padula and Dodge that they would be
killed.
(11) On June 21, while employees were working on the adjacent structures,
pickets with nails on short boards moved in front of Dodge's truck as it was
leaving Midland Place at Irvington Avenue, and thrust the boards under the
tires of the truck, puncturing one of the tires.
It is clear that the conduct of the pickets and Business Agents McLaren and
Swanson, which has just been described, constituted restraint and coercion of
the employees of Fairmount and of other employees engaged in the delivery of
material to the Ivy Hill project. That the Carpenters is chargeable with the
conduct of its business agents, McLaren and Swanson, described in items 5 and
6 above, is not open to question. Furthermore, upon the evidence concerning
the arrangements for the picketing, discussed in part in Section 'l A 6 of this
Report as well as in the present section, it appears, and the undersigned finds,
that through its cooperation and participation with the other unions in common
picketing action under picket captains of the various labor organizations, includ-
ing its own business agents and its secretary, the Carpenters cosponsored the
.picketing and shared the responsibility for its control;' and that the Carpenters
was therefore responsible for the acts of all pickets on or near the picket line,
such as those described in items 1-11, inclusive, which were incidental to, the
picketing and thus within the pickets' "scope of employment."
In all instances, the conduct described in items 1-11, inclusive, was directed
specifically against, or at least occurred in the presence of, nonstriking em-
ployees of Fairmount or employees of employers delivering materials, and its
normal effect was to coerce and restrain these employees in the exercise of their
right under Section 7 to refrain from. engaging in the concerted activities of
their fellow employees. The undersigned consequently finds that, by the con-
duct described in items 1-11 above, the Carpenters, in violation of Section
8 (b) (1) (A) of the Act, restrained and coerced employees of Fairmount and
of employers engaged in the delivery of materials to the Ivy Hill project in the
exercise,of their right under Section 7 of the Act to refrain from the concerted
activities of their fellow employees and to continue working on the project in
spite of the strike.
Although the undersigned has thus found that the Carpenters has violated
Section 8 (b) (1) (A) of the Act in specific instances in which pickets actually
threatened and physically interfered with and obstructed employees in their work,
he does not find that the General Counsel has proved the allegation that the
Carpenters also violated this section of the Act by "mass picketing" in their gen-
eral patrol of Midland Place on May 19. There is no direct-evidence in the record,
nor reasonable ground for an inference, that the mere patrol of the pickets on
May 19 over a distance of 300 feet on Midland Place, a public street, even though
in considerable number and in squad formation, did not permit the employees
reasonable and apparently safe areas for passage or that the patrol itself,
physically obstructed or tended to intimidate employees in going to, from, or
42 International Longshoremen's and Warehousemen 's Union ( Sunset Line and Twine
Company ), 79 NLRB 1487 ; United Furniture Workers of America, CIO ( Smith Cabinet
Manufacturing Co., Inc.), 81 NLRB 886; Local 1150, United Electrical Workers of
America, 010 (Cory Corporation); 84 NLRB 972; United Furniture Workers of America,
CIO (Colonial Hardwood Flooring), 84 NLRB 563.
48 Ibid. See also United Shoe Workers of America , CIO (Perry Norvell Company),
80 NLRB 225.
1000 DECISIONS' OF' NATIONAL LABOR RELATIONS BOARD
about their work at the project " The undersigned therefore does not find the
patrolling of the street by the pickets on May 19 to have been restraint or coercion
within the meaning of Section 8 (b) (1) (A) of the Act.
There was evidence also of other incidents which the undersigned, contrary to
the contentions of the General Counsel and Fairmount, does not find to be restraint
or coercion attributable to the Carpenters. Briefly stated, these incidents were
the following :
Truck drivers George Walker and Bertram Dodge testified that each of them
was followed in cars by men who left the picket line when they drove from the
project to get materials, and that stones were thrown on different occasions by the
men in the following cars, damaging Walker's truck and injuring Dodge. Dodge
identified only Joseph Insabella, an official of the Laborers, as having thrown the
stones at him. Walker did not identify any of his followers but testified that on
one occasion as he left the project and was followed, he saw O'Horo motion to
some of the pickets and.that they then got into their car and followed him. The
undersigned, however, credits O'Horo's denial that he motioned to the pickets for
that purpose or that he ever gave any instructions that pickets were to follow
trucks to or from the project. The undersigned finds no basis for holding the Car-
penters responsible for these incidents in the absence of evidence that the Carpen-
ters authorized the action, since, occurring as they did away from the picket line,
the acts were clearly not within the scope of employment of. the pickets for whom
the Carpenters, upon the present record, was responsible.
Foreman Cocuzza testified that, as-he was crossing Midland Place in the
presence of some of the laborers, he was almost run down by an automobile driven
by a man who said, as he passed, that he intended to kill Cocuzza. Cocuzza was
unable to identify the driver ; nor could he testify that he saw this man come from
the picket line. The undersigned cannot find upon this testimony that the un-
identified driver was acting under instructions for the Carpenters or even as a
picket within the scope of his employment.
Cocuzza further testified that stones were thrown through his window at home
at about 12: 30 a. m. on June 22 after he had seen three officers of the Laborers
loitering at a saloon across the street during the evening and looking up at
Cocuzza's window. Not only does -it thus appear that the suspected wrongdoers
were not on the picket line and were officials of another union, but Cocuzza also
testified that he had seen them leave their posts in front of the saloon across from
his home at 11 p. m., 11/2 hours before his window was broken. The undersigned
finds no basis for holding the Carpenters to be responsible for this incident even
apart from the fact that Cocuzza was admittedly a foreman and a supervisory
employee.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Carpenters, set forth in Section III, above, occurring in
connection with the operations of Fairmount, described in Section-I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and lead.to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Carpenters has engaged in unfair labor prac-
tices within the meaning of Section 8 (b) (1) (A), Section 8 (b) (2), and Sec-
tion 8 (b) (3) of the Act, the undersigned will recommend that it cease and desist
1* See United Shoe Workers of America ( Perry Norvell ), supra; and Local 1150, United
Electrical Workers ( Cory Corporation ), supra. .
WASHINGTON HARDWARE. COMPANY 1001
therefrom and take certain affirmative action in order to effectuate the policies of
the Act.
Upon the above findings of fact, and upon the entire record in the case, the
undersigned makes the following :
CONcLusIONs OF LAW
1-Essex County and Vicinity District Council of Carpenters, A. F. of L., is a
labor organization within the meaning of Section 2 (5) of the Act.
2. All Carpenters at the Ivy Hill project of Fairmount Construction Company,
including weatherstrippers, floorlayers, and linoleum layers, but excluding super-
visors as defined in Section 2 (11) of the Act, constitute a unit of employees
appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
3. On or before May 18, 1948, Essex County and Vicinity District Council of
Carpenters, A. F. of L., was the exclusive representative of all the employees in
the aforesaid appropriate unit for the purposes of collective bargaining within
the meaning of Section 9 (a) of the Act.
4. By demanding from Fairmount Construction Company, and insisting upon,
a collective bargaining agreement making membership in its organization or its
locals a condition of employment without compliance with the proviso in Section 8
(a) (3) of the Act, and by supporting its demand for such a contractual provision
with a threat of strike, a strike, and a refusal to agree to any contract not
containing such a provision, Essex County and Vicinity District Council of
.Carpenters, A. F. of L., (a) attempted to cause Fairmount Construction Company
to discriminate against employees in violation of Section 8 (a) (3), thereby
engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the
Act, and (b) also refused as the exclusive bargaining representative of the
employees in the aforesaid appropriate unit to bargain collectively with Fair-
mount Construction Company, thereby engaging in unfair labor practices within
the meaning of Section 8 (b) (3) of the Act.
5. By restraining and coercing employees of Fairmount Construction Company
and of other employers engaged in the delivery of materials to the Ivy Hill project,
in the exercise of the rights guaranteed in Section 7 of the Act, Essex County and
Vicinity District Council of Carpenters, A. F. of L., has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
6. The aforesaid 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.] 6
WASHINGTON HARDWARE COMPANY and PAT DARNTON , PETITIONER and
WAREHOUSE AND PRODUCE WORKERS , LOCAL 599. Case No.19-RD-35.
August 6,1951
Decision and Order
Upon a petition for decertification duly filed, a hearing was held
before Patrick H. Walker, hearing officer. The hearing officer's rulings
made at the hearing, are free from prejudicial error and are hereby
affirmed.'
3 At the hearing the Union moved that the petition be dismissed on the ground that
the unit requested by the Petitioner was inappropriate . For reasons given in paragraph
numbered 3, below , the Union's motion is hereby granted.
95 NLRB No. 122.