F. H. McGraw and Co.

National Labor Relations Board - Board Decisions

Jun 13, 1952

99 N.L.R.B. 695 (N.L.R.B. 1952)

F. H. McGRAW AND COMPANY
Appendix A
NOTICE TO ALL EMPLOYEES
695
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, we hereby notify our employees that :
WE WILL bargain collectively upon request with INTERNATIONAL
UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLE-
MENT WORKERS OF AMERICA (UAW--CIO) , as the exclusive repre-
sentative of all employees in the bargaining unit described herein,
with respect to grievances, labor disputes, wages, rates of pay,
hours of employment, and other conditions of employment, and
if an understanding is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All mechanics, partsmen, washrack men, bumpers, and
painters at the Employer's establishment located at 5454 Cass
Avenue, Detroit, Michigan, excluding salesmen, office and
clerical employees, guards, and supervisors as defined in the
Act.
1`7L WILL NOT in any other manner interefer with the efforts
Of INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRI-
CULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO), to
negotiate for or represent the employees in the aforesaid unit as
their exclusive bargaining agent.
Louis ROSE COMPANY,
Employer.
Dated -------------------- By --------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
F. H. MCGRAW AND COMPANY and ALBERT G. HENRY
INTERNATIONAL UNION OF OPERATING ENGINEERS, A. F. L. AND ITS
LOCAL 181 and ALBERT G. HENRY. Cases Nos . 9-CA-380 and
9-CB-108. June 13, 1952
Decision and Order
On November 23, 1951, Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above -entitled proceeding, finding that the Re-
spondents , F. H. McGraw and Company and International Union of
Operating Engineers , AFL,, and its Local 181 , had engaged in and
99 NLRB No. 116.
696 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
u ere engaging in certain unfair labor practices, and recommending
that they cease and desist therefrom and take certain affirmative
action, as set forth in- the copy of the Intermediate Report attached
hereto. The Trial Examiner also found that the Respondents had not
engaged in certain other unfair labor practices alleged in the com-
plaint, and recommended dismissal of those allegations. Thereafter,
each of the Respondents and complainant Henry filed exceptions to
the Intermediate Report and supporting briefs.
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 exceptions, the briefs, and the entire record in the
case,' and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following additions.
1. The Trial Examiner found, and we unanimously agree, that the
record establishes that the complainant Henry applied to the Respond-
ent'Company for a supervisory position only. Recently in Pacific
American Ship Owners Association,2 the majority of a three-member
Board panel held that former supervisors of a shipping company who
were reapplying for supervisory positions were not entitled to the pro-
tection of Section 8 (a) (3) of the Act. For the reasons stated in that
decision we find here that Henry, in applying for a supervisory posi-
tion, was not entitled to such protection. Accordingly, we shall adopt
the Trial Examiner's recommendation and dismiss the complaint inso-
far as .it -alleges'that the-Respondent Company, discriminated--against
him in violation of Section 8 (a) (1) and (3) of the Act, and that the
Respondent Union attempted to cause and did cause such discrimina-
tion in violation of Section 8 (b) (1) (A) and 8 (b) (2) of the Act.'
2. The Trial Examiner has recommended that the Respondent Com-
pany and the Respondent Unions cease giving effect to the unlawful
closed shop or preferential hiring provisions in their signed and oral
contracts at any of the Company's projects. The Company and the
Unions take issue with this recommendation on the ground that all
of the evidence was confined to the Paducah project. We can perceive
no valid reason for limiting our order here to that one project. On
this issue we are unanimous.
James Moran, the Company's industrial relations director, admitted
at the hearing that in a recent representation case, involving the same
project, he had testified that the signed contract between the Inter-
national and the Company had been automatically renewed and was
1 The Respondent Company's request for oral argument is denied, because the record
and briefs, in our opinion, adequately present the issues and positions of the parties.
98 NLRB 582.
Member Murdock does not agree with the dismissal of the complaint as to Henry, for
Seasons fully set forth in his separate partial dissent.
F. H. MCGRAW -AND COMPANY 697
then in effect .4 He further identified the Local's unsigned agreement
and stated that it was his understanding that the Company had agreed
to be bound by it. As the Company is engaged in general construction
contracting throughout the United States, it appears that any remedy
of more limited scope than that recommended by the Trial Examiner
might permit the Company and the Unions to engage elsewhere in the
very conduct here found to be unlawful 5
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
I. The Respondent F. H. McGraw and Company, Paducah, Ken-
tucky, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Including in its employment applications any question con-
cerning membership in labor organizations or otherwise interrogating
employees or applicants for employment regarding their union affilia-
tion.
(b) Requiring employees or applicants for employment at any of
its projects, including its project near Paducah, Kentucky, to obtain
clearance or job referrals from International Union of Operating
Engineers, AFL, or its Local 181, or any other labor organization, as
a condition of employment, except under a nondiscriminatory ar-
rangement permitted by Section 8 (a) (3) of the Act.
(c) Performing, enforcing, or giving effect to, at any of its projects,
including its project near Paducah, Kentucky, the closed-shop or
preferential hiring provisions of its current written collective bar-
gaining agreement with International Union of Operating Engineers
or its current oral collective bargaining agreement or understanding
with Local 181 of said International, or entering into or enforcing any
extension, renewal, modification, or supplement thereof, or any super-
* In the representation case, F. H. McGraw and Company, 96 NLRB 821, issued October
15, 1951, the Company and the Unions urged both the International and Local agreements
as a bar. The Board there rejected this contention on the ground that both contained
unlawful union-security clauses.
6 see Red Star Expre8s Linea of Auburn , Inc, 93 NLRB 127; enforced 196 F. 2d 78
(C. A. 2).
The Unions further argue that under a general savings clause the Local 's agreement
was purged of illegality by the Board's decision in the representation case. The savings
clause in question provides that if any provision of the contract is held unlawful by any
governmental authority , that provision shall no longer remain in effect . Regardless of
whether or not the decision in the representation case on October 15, 1951 , cured the Local's
agreement , the fact remains that that agreement was in effect , with its unlawful union-
security provisions intact , from January 1951 until after the hearing herein was con-
cluded. In the circumstances, and without passing upon the possible curative effect of
the representation case decision , we find that the Trial Examiner's recommended remedy Is
appropriate to remedy past and prevent future violations.
698 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
seding agreements with the said labor organizations, containing union-
security provisions, except as authorized by the proviso to Section 8
(a) (3) of the Act.
(d) In any like or related manner interfering with, restraining, or
coercing its employees or applicants for employment at any of its
projects, including its project near Paducah, Kentucky, in the exer-
cise of their right to self-organization, to form, join, or assist labor
organizations , to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its main office at Hartford, Connecticut, and at all
projects now being operated by it at which shovel operators or opera-
tors of other heavy excavation equipment are employed, including
its Paducah, Kentucky, project, copies of the notice attached to the
Intermediate Report marked "Appendix A." 6 Copies of said notice,
to be furnished by the Regional Director for the Ninth Region, shall,
after being duly signed by the Respondent Company's representative,
be posted by the Respondent Company immediately upon receipt
thereof and maintained by it for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
the Respondent Company to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for the Ninth Region, in writ-
ing, within ten (10) days of the receipt of this Order, what steps
it has taken to comply herewith.
II. The Respondent, International Union of Operating Engineers,
AFL, and its Local No. 181, their respective officers, representatives,
and agents, shall:
1. Cease and desist from :
(a) Causing or attempting to cause the Respondent Company to
engage in the practice of requiring employees or applicants for em-
ployment to obtain clearance or job referrals from the Respondent
Unions, or either of them, as a condition of employment, except un-
6 This notice, however , shall be, and it hereby is, amended by striking from the first
paragraph thereof, the words "The Recommendations of a Trial Examiner " and substitu-
ing in lieu thereof, the words "A Decision and Order ." In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
F. H. McGRAW AND COMPANY 699
der a nondiscriminatory agreement permitted by Section 8 (a) (3)
of the Act.
(b) Performing or giving effect to, at any of the projects of the
Respondent Company, including its project near Paducah, Kentucky,
the closed shop or preferential hiring provisions of the Respondent
International's current written collective bargaining agreement with
the Respondent Company or of the Respondent Local's current oral
collective bargaining agreement with the Respondent Company, or
entering into or enforcing any extension, renewal , modification, or
supplement thereof, or any superseding agreements with said Com-
pany, containing union-security provisions, except as authorized by
the proviso to Section 8 (a) (3) of the Act.
(c) In any other manner causing or attempting to cause the Re-
spondent Company to discriminate against the Respondent Com-
pany's employees or applicants for employment in violation of Sec-
tion 8 (a) (3) of the Act.
(d) In any like or related manner restraining or coercing employees
or applicants for employment at any of the Respondent Company's
projects, including its project near Paducah, Kentucky, in the exer-
cise of their rights guaranteed by Section 7 of the Act, except to the
extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post, in the case of the Respondent International, at its busi-
ness office at Washington, D. C., and, in the case of both Respondent
Unions, at the business office and meeting places of the Respondent
Local at Paducah, Kentucky, notices in the form attached to the In-
termediate Report marked "Appendix B." 7 Copies of said notice, to
be furnished by the Regional Director for the Ninth Region, shall,
after being duly signed by representatives of the respective Respond-
ent Unions, be posted by the Respondent Unions immediately upon
receipt thereof and maintained by them for sixty (60) consecutive
days thereafter, in conspicuous places, including all places where no-
tices to members are customarily posted. Reasonable steps shall be
taken by the Respondent Unions to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for the Ninth Region signed
copies of the notice attached to the Intermediate Report as Appendix
'This notice , however . shall be , and it hereby is, amended by striking from the first
paragraph thereof the words "The Recommendations of a Trial Examiner " and substitut-
ing in lieu thereof, the words "A Decision and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order' the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order "
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B, as herein amended , for posting, the Respondent Company willing,
at the projects operated by the Respondent Company, including its
-project at Paducah, Kentucky, and places where notices to employees
are customarily posted. The notice shall be posted for a period of
sixty (60) consecutive days thereafter. Copies of said notice, to be
furnished by the Regional Director for the Ninth Region, shall, after
being duly signed as provided in paragraph 11 2 (a) above, be forth-
with returned to the Regional Director for such posting.
(c) Notify the Regional Director in writing within ten (10) days
from the date of this Order what steps the Respondent Unions have'
taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges a discriminatory refusal to hire
Albert G. Henry.
MEMBER MURDOCH, dissenting in part:
In Pacific American Ship Owners Association,8 disagreeing with
two of my colleagues, I fully set forth my view that merely by apply-
ing for a supervisory position an employee member of the working
class does not lose the protection against discrimination guaranteed
by Section 8 (a) (3) ; that the Act properly construed, and as earlier
construed by the Board in Briggs Manufacturing Company; excludes
from protection as a "supervisor" only those individuals presently
employed by, and possessing supervisory authority to act for, a par-
ticular employer. I adhere to my position on the proper construction
of the Act and refer to my dissenting opinion in the Paci fic-American
case for the complete statement of my views instead of repeating them
here. Accordingly, to the extent that the majority opinion holds that
Henry could be discriminated against with impunity simply because
he was an applicant for a supervisory position, I dissent.
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by Albert G. Henry on February 12, 1951, and subse-
quently amended, the General Counsel of the National Labor Relations Board for
the Ninth Region ( Cincinnati , Ohio ), following the consolidation of the above-
entitled cases pursuant to Section 102.33 of the Board's Rules and Regulations,
Series 6, issued his complaint , dated August 16, 1951, against F. H. McGraw and
Company, herein called the Respondent Company, and against International
Union of Operating Engineers, A. F. L., and its Local 181, herein called re-
spectively the Respondent International and the Respondent Local, and, together,
the Respondent Unions, alleging that the Respondents engaged in unfair labor
practices affecting commerce , the Respondent Company within the meaning of
Sections 8 (a) (1) and (3) and 2 ( 6) and ( 7) of the National Labor Relations
8 98 NLRB 582
9 75 NLRB 569.
F. H. MCGRAW AND COMPANY 701
Act, 61 Stat . 136, herein called the Act, and the Respondent Unions within the
meaning of Sections 8 (b) (1) (A) and (2 ) and 2 (6) and (7) of the Act.
With respect to the unfair labor practices the complaint alleged in substance:
1. That the Respondent Company since on or about January 1, 1951, violated
Section 8 ( a) (1) of the Act by questioning its employees in regard to their union
membership , and by including in, its, employment applications a question as to
the membership of job applicants in labor organizations.
2. That since on or about January 1, 1951, the Respondent Company violated
Section 8 (a) (1) and (3) of the Act, (a) by entering into and enforcing closed-
shop agreements , understandings , and practices with the Respondent Unions,
and (b) by discriminatorily refusing to employ Albert G. Henry because of his
nonmembership in the Respondent Unions.
3. That since on or about January 1, 1951, the Respondent Unions violated
"Section 8 (b) (1) (A) and (2 ) of the Act, (a) by entering into, attempting to
enforce, and enforcing the agreements, understandings , and practices adverted to
in the preceding paragraph, and (b) by attempting to and causing the Respond-
ent Company to discriminate against Albert G. Henry as well as against other
employees in violation of Section 8 (a) (3) of the Act.
The Respondent Company and the Respondent Unions filed answers to the com-
plaint. The Company admitted in substance the allegations of the complaint re-
lating to the nature of its business operations , but denied generally that it had
committed the unfair labor practices alleged. The Respondent Unions denied
knowledge or information as to the correctness of the complaint's allegations
relating to the Respondent Company's business operations, and denied generally
the allegations of the complaint attributing to them the commission of unfair
labor practices.
Pursuant to notice , a hearing was held at Paducah, Kentucky, on September
10 and 11, 1951, before Arthur Leff, the undersigned Trial Examiner, duly desig-
nated by the Chief Trial Examiner. The General Counsel and the Respondents
were represented by counsel. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence was afforded all parties. Motions
made by the Respondents at the opening of the hearing, and thereafter renewed,
for a 2-week postponement of the hearing, were denied. Also denied were
motions made by the Respondents for the severance of the two cases which had
been consolidated. At the close of the case, motions were granted without objec-
tion to conform the pleadings to the proof with regard to minor variances only.
All parties were afforded the opportunity to argue orally upon the record and
to submit briefs as well as proposed findings of fact and conclusions of law.
After the hearing a brief was filed by the General Counsel.
Upon the entire record in the case, and from my observation of the witnesses,
T make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT COMPANY
F H McGraw and Company, a New Jersey corporation, having its principal
« flice at Hartford, Connecticut, and offices in various other parts of the United
States, is engaged in the business of general construction contracting throughout
the various States of the United States. The Respondent Company in the course
of its business operations causes substantial quantities of materials, supplies,
and equipment used by it to be purchased, delivered, and transported in inter-
state commerce into the various States where it is engaged in construction opera-
tions from and through States of the United States other than such States. The
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Company performs a substantial amount of services for companies
engaged in interstate commerce. It also is a prime contractor for the Govern-
went of the United States. At present it is engaged in the construction of a plant
for the United States Atomic Energy Commission, an agency of the Government
of the United States, on land owned by the United States Government near
,Paducah, Kentucky, formerly known as the Kentucky Ordnance Works. At this
construction project, involving a plant which covers many square miles and which
when completed will be engaged in operations substantially affecting the national
defense, the Respondent Company now employs approximately 10,000 employees.
This project was begun in January 1951 and is expected to take about 21/2 years
from that date for completion. The value of the materials, supplies, and equip-
ment used by the Respondent Company on that project exceeds by far $1,000,000.
A substantial quantity of such materials, supplies, and equipment is transported
in interstate commerce into the State of Kentucky from and through States Of
the United States other than the State of Kentucky.' The Board has previously
asserted jurisdiction over the Respondent Company in a proceeding-in which the
Respondent Local was a party. F. H. McGraw, & Co., 96 NLRB 821. It is found
that the Respondent Company is engaged in commerce within the meaning of the
Act, and that it will effectuate the policies of the Act to assert jurisdiction in
this case.'
II. THE ORGANIZATION INVOLVED
International Union of Operating Engineers, A. F. L., and its Local 181 are
labor organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Violation by the Respondent Company of Section 8 (a) (1), by the inclusion
in its employment applications of a question concerning the membership of job
applicants in labor organizations
The Respondent Company now regularly uses, as it has for some time in the
past, an employment application form on which prospective employees are re-
quired among other things to state in what unions, if any, they hold membership.
Each job applicant is required to fill out this form as a step in the processing
of his application. The inclusion in the Respondent Company's application forms
of the union interrogatory is attacked in the complaint as illegal.
The Board, with court approval, has consistently held that to require job
applicants to disclose on such forms whether or not they are union members
is to engage in conduct that is no less violative of the Act than oral interrogation
I The findings of fact with regard to the business of the Respondent Company are based
in part upon allegations of the complaint that are admitted in the Respondent's Company's
verified answer In addition to the admissions contained in the Respondent Company's
answer, independent testimony was adduced to establish that the Respondent Company's
operations are multistate in character ; that the Respondent's annual purchases crossing
State lines exceed $1,000,000 in value ; and that the construction project in which the
Respondent Company is now engaged near Paducah, Kentucky, is one that substantially
affects national defense. Although contesting the jurisdiction of the Board, the Respondent
Unions made no attempt at the hearing to litigate the question of jurisdiction and pre-
sented no evidence that might tend to contradict the admissions contained in the Re-
spondent Company's answer or the testimony which was adduced by the General Counsel
to support the commerce allegations of the complaint
a'See N. L R. B. v. Denver Building & Construction Trades Council, 341 U. S.-675 ; The
Borden Company, 91 NLRB 628; Federal Dairy Co, Inc., 91 NLRB 638; Westport Moving
and Storage Company, 91 NLRB 902.
F. H. MCGRAW AND COMPANY 703
concerning union affiliation or activity.3 The possibility. that such disclosure
may be useful in evaluating an applicant's experience provides no defense.
Other methods are available for determining experience that do not call for an
invasion of employee rights under the Act. As interrogation is a violation of
the Act per se, it is unnecessary to show abuses resulting from the interrogation
as a predicate to a finding of illegality. Even if such a showing were necessary,
it is amply made out in this case, for, as more fully appears below, the record
supports a finding that the employment applications are utilized by the Respond-
ent Company as part of its hiring arrangements which themselves are violative
of Section 8 (a) (1) and 8 (a) (3) of the Act.
It is found that, by questioning job applicants concerning their. union member-
ship, the Respondent violated Section 8 (a) (1) of the Act.
B. Violation by the Respondent Company of Section 8 ( a) (1) and 8 (a) (3) of
the Act, and by the Respondent Unions of Section8 ( b) (1) (a), and 8 ( b) (2)
as the result of closed-shop or preferential hiring agreements, understandings,
and practices
Under date of July 29, 1948, the Respondent Company and the Respondent
international entered into a written collective-bargaining agreement, designed
to cover the Company's operations on a Nation-wide basis. The provisions of
this agreement pertinent to this proceeding are as follows :
The Company agrees to pay the scale of wages, work the schedule of
hours and conform to the conditions of employment 'in force and effect in the
locality in which the Company is performing or is to perform work. The
Company agrees also to employ only members in good standing in the Union.
on work coming under its jurisdiction . [Emphasis supplied.]
.s s s s s s t
The Union agrees to extend to the Company the same scale of wages,
hours of work and conditions of employment as are in force and effect for
other employers in the locality in which it is performing or is to perform
work.
t # t t i •
Foremen or Master Mechanics may be selected by the Company and shall
at all times represent its interests. They may be members of the Union.
s s + s s a s
This agreement is dated July 29, 1948, and shall continue from year to year
thereafter unless notice is given in writing by either party to the other party
(60) days prior to date of expiration; but the parties may mutually agree to
i change or amend any part of this agreement at any time.
The July 29, 1948, contract is still in effect, having been automatically renewed
from year to year in accordance with its terms. Up to the time of the hearing,
there had been no alteration or amendment of the contract. The last renewal
date was July 29, 1951, and as it now stands the contract will not expire for at
least a year from that date.
The Nation-wide contract is interpreted by the parties as requiring the Re-
spondent Company not only to recognize and deal, with the Respondent Interna-
e See, e. g , The M. H. Davidson Company, 94 NLRB 142 ; Standard Dry Wall Products,
%nc., 91 NLRB 544; The Post Printing and Publishing Company, 90 NLRB 1820. See
generally , Standard -Coosa-Thatcher Company, 85 NLRB 1358 and see, also , H. J. Heinz Co.
V. N. L. R. B., 311 U. S. 514, 518 ; N. L. R. B. v. Fairmont Creamery Co., 169 F. 2d 169, 170
(C. A. 10) ; Joy Sslly Mills v. N. L. R. B., 185 F. 2d 732, 743; Texarkana Bus Corp v.
N. L. R. B., 119 F. 2d 480, 483 (C. A. 8).
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional as the representative of employees falling within the International's craft
jurisdiction, but also to recognize and deal with the International's local union
which has territorial jurisdiction in the particular local area where the Company
may be engaged in a construction project. In practice, the Respondent Company
does not execute separate written agreements with the locals, but it does "pick
up" and abide by the terms and conditions of prevailing local contracts wherever
they exist.
In December 1950 or January 1951, the Respondent Company entered into a
contract,. with the Atomic^Energy Commission for the construction of a plant
near Paducah, Kentucky. The construction project required the services of a
substantial number of employees within the craft jurisdictional lines of the Re-
spondent Unions. Hiring began about the beginning of 1951.
At that time there was in existence-and there still is-a standard area-wide
collective-bargaining agreement governing the relationship between construction
contractors and the Respondent Local, the Local to which the Respondent Inter-
national has assigned territorial jurisdiction over most of Kentucky, including
the Paducah area. The standard area agreement then in effect-running from
July 1, 1950, to June 30, 1951, and providing for automatic renewal at the end
of the contract year absent timely notice of modification or cancellation-sets
out the wages, hours, and terms and conditions of employment with regard to
employees falling within the craft jurisdiction of the Respondent Unions. It
contains among other stipulations the following:
The CONTRACTOR agrees to employ, through the office of Local 181, only
members who are in good standing with the UNION in payment of their dues,
to operate all machinery and equipment. Good standing members of the
UNION shall be interpreted to mean those who are not under discipline or
penalty invoked by the UNION. Upon written notice by the UNION to the
CONTRACTOR, through registered mail that a certain individual or individuals
are not in good standing, it shall be sufficient notice for the removal of the
individual from the job, under terms of this contract. The UNION shall have
forty-eight (48) hours notice to fulfill request for operators.
When the Respondent Company began work at the Paducah project, it recog-
nized the Respondent Local as the bargaining representative of employees in the
job classifications covered by the standard area-wide agreement. It has since
continued to recognize and to deal with the Local as such representative. As
appears from the testimony of company officials, this was done in compliance
with the Company's Nation-wide contract with the International. In accordance
with its general- practice, the Respondent Company did not formally execute a
separate written collective-bargaining agreement with the Respondent Local.
But, as testified by James R. Moran, the Company's director of industrial rela-
tions, the Company nevertheless "agreed" to carry out the written terms and
conditions of the standard uniform area-wide contract in use between the Re-
spondent Local and construction contractors performing work within the Local's
territorial jurisdiction. In its dealings with the Respondent Local, the Respond-
ent Company has acted within the framework of that contract, just as if it had
been a signatory thereto. It has not only attempted to follow all the terms and
conditions of employment as there set out ; it has also negotiated with the Re-
spondent Local on grievances arising from asserted departures from contractual
provisions. The Respondent Local, too, has regarded the standard area-wide
contract as binding on the Company, although unsigned by it. In grievance nego-
tiations, the Respondent Local has taken the position-apparently undisputed
by the Company-that the Company was obliged to follow the terms and condi-
tions of the standard local contract to which it had "agreed verbally." And in
F. H. McGRAW AND COMPANY 705
a representation proceeding instituted upon petition of a rival union seeking an
election among at least some of the covered employees, the Respondent Local,
appearing as an intervenor, joined the Respondent Company in contending that
the petition was barred by (1) the written Nation-wide agreement of July 29,
1948, between the Respondent Company and the Respondent International, and
(2) the local area agreement between the Respondent Local and the Respondent
Company which had been orally adopted by the Company.'
In its hiring practices at the Paducah project, the Respondent Company has
conformed in Substance to the contractual requirement to employ operating
engineers only through the office of the Respondent Local, unless such men were
unavailable from that source. The following hiring procedure has been employed
by the Respondent Company since the inception of the project: Upon receipt
of a requisition slip from the department head calling for a certain number of
operating engineers in described classifications, the Company's personnel dfce
contacts the business office of the Respondent Local, usually by telephone, and
requests the dispatch of qualifying applicants. The Local then sends to the
Company's office the number of men requested, each with a referral card from
the Local, showing his name, craft, and prevailing rate. The men referred are-
then processed by the Respondent's employment office and, if _ found qualified
and cleared as to security, are hired. This hiring procedure was worked out
between the Respondent Company and the Respondent Local at the time the
project began. During the approximately 8 months' period elapsing between
that time and the time of the hearing, all craft employees within the recognized
jurisdiction of the Respondent Unions were hired through the Respondent Local
in accordance with the procedure outlined above; none was hired without clear-
ance from the Respondent Local' At least until the hearing, the Respondent
Local never failed to meet the Company's requirements-for operating, engineers.
For that reason, and because under its arrangements with the Respondent
Unions the Company is obliged to look to the Local originally for its source
of supply, the Company has not sought such employees in the open labor market e
In supplying operating engineers to the Respondent Company, the Respondent
Local has not invariably required that individuals referred for jobs to the
Company be union members. There have been occasions when nonmembers
were cleared. As a matter of normal policy, however, the Respondent Local
has followed the practice of clearing applicants in the following order of prefer-
ence : (1) Local union members ; (2) members of other locals of its International ;
and (3) nonmembers. Under no circumstances will the Respondent Local ever
clear for employment with the Company any member, either of its own or another
local, who is then in arrears in union dues. Nonmembers, as well as members
of other locals of the International, who are cleared, are required to pay the
Local a permit fee.
* The finding in this respect is based upon findings made by the Board in its Decision
and Direction of Election in F. H. McGraw & Co., 96 NLRB 821, of which judicial notice
is taken. The Board in that representation proceeding overruled the "contract bar" con-
tention of the Respondent Company and the Respondent Local, "for the reason, among
others, that [the contracts relied on]i contain illegal union-security clauses requiring the
Employer to hire only union members, if available."
5 According to testimony of Respondents' witnesses, however, no applicant applied per-
sonally in the first instance at the Company 's employment office during that period. This
testimony stands uncontradicted except in the case of Albert Henry, separately discussed
in a succeeding section of this Report.
The bulk of the testimony at the hearing related to the practices of the Company at
its Paducah project. However, one official of the Respondent Company admitted while
testifying that the same pattern of hiring through locals of the Respondent International
was followed at other projects of the Company with which he was familiar.
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleges in substance, and the Respondents deny, that "since on
or about January 1, 1951,"' the Respondent Company "by entering into and
enforcing ... [the] agreebn6iits, understandings and practices" outlined abdve,
Violated Section 8 (a) (1) and (3) of the Act, and that the Respondent Unions,
by their corresponding participation in such agreements, understandings, and
practices, violated Section 8 (b) (1) (A) and 8 (b) (2) of the Act. No viola-
tion of Section 8 (a) (2) is alleged.
It is clear that the contract between the Respondent Company and the Respond-
ent Union of July 29, 1948, which, it is found, continued to remain in effect after
January 1, 1951, provided in form for a closed shop. Contrary to the contention
of the Respondent Unions, the record does not support a finding that the Nation-
wide contract was superseded by the standard area-wide contract, which, it is
found, the Respondent Company and the Respondent Local orally agreed to adopt
as applicable to the Company's Paducah operations . The record leaves little
doubt that the mutual understanding to be bound by the provisions of the prevail-
ing local contract represented the performance or enforcement of a contractual
covenant in the Nation-wide contract, and was designed to supplement rather
than to supersede the basic contract. In any event, the area-wide contract does
hot substantially alter the closed-shop provision of the basic contract, except to
make it clear that the Company is to be free to hire independently of the Union if.
but only if, the Union is unable to fulfill the Company's requirements. Whether
characterized as a closed-shop provision or a preferential-hiring provision, it is
obvious that the existing arrangement runs afoul of the proscriptions of the Act
with regard to conditioning the hire or tenure of employment upon union mem-
bership. On its face, it requires the Company to hire only union members in
good standing , if available. This is plainly at variance with Section 8 (a) (3)
which prohibits a contractual requirement of union membership as a condition
of employment except on or after the thirtieth day of employment.' There is no
merit, to. the, contention of the Respondent Unions that the agreed-upon hiring
arrangement was saved from illegality, because the Company was left free to hire
employees regardless of their union membership when the Union was unable to
supply men. An agreement requiring that union employees be given preference
in hiring is no less illegal than one which restricts an employer to their exclusive
hiring.' Nor is a different conclusion indicated by the showing made that the
Union did on occasions refer nonunion men to the Company. For, as has been
seen, the Respondent Local-acting within the framework of its existing arrange-
ment with the Company-admittedly followed as a matter of normal policy the
practice of preferring its own members and members of other locals of its parent
international over nonunion men, and of never referring union members who were
in arrears in dues.
The principal defense, at least of the Respondent Company, appears to be that
the Board is precludedmt this time from attacking the close-shop or preferential-
hiring practices now in effect, because they stem from the contract of July 29,
1948, executed more than 6 months before the filing and service of the charges
giving rise to this proceeding. With this defense I am unable to agree. The Gen-
eral Counsel does not contend in this proceeding that the execution of the 1948
° Moreover, prior to the amendment of October 22, 1951 (Public Law 189. 82nd Congress.
1st Session), it was illegal to require union membership even after the thirtieth day of
employment, unless authorized by an election conducted under Section 9 (e) as it then lead.
Since, so far as appears, the union-security provisions under both the 1948 Nation-wide
contract and the adopted area-wide contract were never authorized by an election among
the employees involved, the obligation to discharge, upon notice from the Union, any
individual not in good standing was illegal for this additional reason.
' Consolidated Western Steel Corporation., 94 NLRB 1590; Mandel Cork Corpoi ation,
96 NLRB 1142
F. H. McGRAW AND COMPANY 707
contract should be found to constitute an unfair labor practice ; indeed, he ex-
pressly, and properly, concedes that the provisions of Section 10 (b) of the Act
bar a present finding to that effect. His pleading is based entirely upon what
occurred after January 1, 1951, within the 6-months period limited by Section 10
(b). The record shows that after that date the Respondent Company in partici-
pation with one or both of the Respondent Unions engaged in the following con-
duct which, it is found, was independently violative of the Act.
(1) After January 1, 1951, the Respondent Company and the Respondent Inter-
national continued in existence and maintained in effect the 1948 contract includ-
ing the unlawful closed-shop provisions thereof.'
(2) In January 1951, the Respondent Company and the Respondent Unions
performed and enforced that contract in accordance with its terms by extending
its 'application to cover the Company's new construction project near Paducah.
(3). By refraining to take steps to cancel or amend the 1948 contract during
the appropriate period in 1951, the Respondent Company and the Respondent
International jointly acquiesced in the automatic renewal of that contract, in-
cluding its unlawful union-security provisions, thereby in effect entering into a
mutual agreement for the extension of that contract for an additional year
after July 29, 195110
(4) In January 1951, the Respondent Company and the Respondent Local
entered into a verbal agreement or understanding to adopt and enforce at the
Company's Paducah project the provisions of the prevailing Local area-wide
standard agreement governing terms and conditions of employment of em-
ployees within the Union's craft jurisdiction, including the unlawful preferential-
hiring provisions of that contract referred to above."
(5) After January 1, 1951, the Respondent Company and the Respondent
Unions, substantially enforced and gave effect to the illegal union-security pro-
visions of the 1948 contract as supplemented by the unexecuted but mutually
adopted Local area-wide contract, by following and acquiescing in hiring pro-
cedures and practices wliereby prospective employees were requisitioned solely
through the Respondent Local and by it referred to the Respondent Company
on a preferential basis which gave priority to union members in good standing."
One further argument of the Respondent Company warrants mention. The
Local area-wide standard agreement contains a general savings clause, dis-
claiming any intent "to violate any laws or any rulings or regulations of any
Governmental authority or agency having jurisdiction of this Agreement," and
providing that if any provision is "held or constituted to be void," the remainder
of the agreement, unless inseparable, shall nevertheless remain in full force and
effect. At the hearing, the Respondent Company contended that this clause
precluded the illegal union-security clauses from taking effect and saved the
Respondents from any violation of the Act. This argument fails to find support
either in the facts or in the law. There is no evidence in the record to suggest
that the parties intended to suspend or defer the application of the illegal union-
security clauses. On the contrary, the further renewal in 1951 of the 1948 agree-
ment without amendment, and the substantial performance by the parties since
January 1, 1951, of the illegal hiring provisions of the Nation-wide and Local
area-wide agreements unmistakably point to the opposite conclusion. Nor may
the savings clause itself be fairly read to reflect any such intent. Reasonably
See Childs Company, 93 NLRB 281.
10 See Heat and Frost Insulators' Union, et al., 92 NLRB 753 ; Childs Company, supra.
u See Consolidated Western Steel Corporation, supra; Del E. Webb Construction Com-
pany, 95 NLRB 75.
12 See Consolidated Western Steel Corporation, supra ; Del E. Webb Construction Com-
pany, supra ; Mundet Cork Corporation , supra; Utah Construction Co., 95 NLRB 196
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
construed, it merely expresses an intent to sever from the contract any provision
that may eventually be adjudicated void, but not until such adjudication is
made, and without in the meantime affecting its operative force. Similar sever-
ability clauses have consistently been held by the Board as ineffective to cure
otherwise illegal union-security clauses in contracts between Employers and
Unions" It is immaterial that the parties may not have desired to violate the
law. The fact remains that they did ; and unless the illegality is here adju-
dicated as such, and an appropriate remedial order made, the very existence of
the contractual provisions will continue to operate as a restraint upon employee
rights.
Upon the record as a whole it is concluded and found that, by reason of the
conduct in which they respectively engaged, itemized above as occurring after
January 1, 1951, the Respondent Company violated Section 8 (a) (1) and 8 (a)
(3) of the Act, and the Respondent Unions violated Sections 8 (b) (2) and
8 (b) (1) (A) of the Act 1'
C. The alleged discrvtndnattry refusal to hire Albert G. Henry
Albert G. Henry, a resident of Knoxville, Tennessee, had once been a member
of the Respondent International, but had ceased paying dues in 1944, and at
the time of the hearing was roughly $500 in arrears. In December 1950, the
Respondent Company inserted an advertisement in a Knoxville newspaper for
keymen to work on its Paducah project. Desirous of securing a position in a
supervisory capacity, Henry contacted the Respondent Company at its Oak
Ridge, Tennessee, office. Henry was briefly interviewed at that time and given
an application form to fill out. In his written application he asked for a job as
an equipment foreman, admittedly a supervisory position, at a requested salary
of $225 a week." Later, after again contacting a company representative,
Henry was told that hiring would be done at Paducah, and it was suggested to
him that he contact John M. Curlee, the Company's deputy project manager at
Paducah.
On January 12, 1951, according to Henry's testimony, he called on Curlee at
Paducah. Henry testified that after reminding Curlee of his earlier interview
with him at Oak Ridge and discussing some of the jobs on which he had pre-
viously worked, the following conversation ensued:
He [Curlee] said, "Well, you wanted a job as foreman or something like
that; is that right? And I said "I did," and he said "This is oui• equip-
ment superintendent here," and we shook hands, and I said "Now, of course,
now this is a new Company with me. I don't know the Company and the
Company doesn't know what I can do. I have written here what I can do,
but they don't know it, but I said, "It's understood I am to qualify myself
for the job I am applying for," and he said "That's to be understood."
s s o • r • t
He [Curlee] said, "Well, I tell you," he said, "You go get cleared through
the Local, the Union," and I said "Is that 181?" and he said "Yes," and he
said "Come back and the job is yours."
1: See, e. 'g., Indiana Limestone Co., Inc., 92 NLRB 1337; Muntz Television, Inc., 92
NLRB 29; Reading Hai dware Corporation, 85 NLRB 610; Hickey Cab Company, 88
NLRB 327.
14 See, generally, and in addition to cases cited above, Acme Mattress Company, 92
NLRB 968, Wisconsin Axle Division, The Timkin-Detroit Axle Company, 91 NLRB 1010;
New York State Employer s Inc., et at, 93 NLRB 127
At the hearing, Henry testified that he reallv-intended to isk for 8125
F. H. MCGRAW AND COMPANY 709
Henry testified that when he told Curlee , "It's understood I am to qualify
myself for the job I am applying for," he meant by that he would have "to
operate the rig and different kinds of rigs in a manner that [he] could prove
[he] could handle the job as equipment supervisor ." He admitted , however,
that he did not voice that meaning to Curlee, and Curlee made no express state-
ment to indicate that he attached a like meaning to Henry's remark. On that
point , Henry's testimony was as follows :
Q. (By Mr. Goldstein) Now when you talked to Mr. Curlee in Padu-
cah . . . did you indicate to him in any manner that you would have
to do something before you became an equipment foreman?
A. Why, no, I didn 't mention it to him in that sense. He seemed to be
so well versed with the procedure that it was generally understood that you
bad 'to take steps to be elevated or promoted to a foreman, as they see fit.
* * * * * * *
Q. Did you indicate to Mr. Curlee in any manner what these steps were
that you were going to have to take before you became an equipment fore-
man?
A. Yes, and I had told him that I had been an equipment foreman before; I
had that much experience, and-but I was willing to prove, and ready to
prove, which I would do. And he said that was understood. . . .
Q. (By Trial Examiner) Did Mr. Curlee tell you the procedure was that
you had to work as an operator first?
A. Sir?
Q. Did he specifically tell you that?
A. No, he didn't tell me I had to work as an operator first, but I don't know
of any case where there has ever been an equipment foreman sent out
except-well especially to a new Company, that they didn't know his
qualifications.
To pick up Henry's narrative-after he was told to get cleared through the
Respondent Local, he contacted Rankin Connolly, the Local's business agent,
and in a telephone conversation with him requested clearance through the
Respondent Local to work for the Respondent Company. As appears from
Henry's testimony, he stated as a reason for desiring clearance that :
I wanted to lay the groundwork, to keep any resentment down if I could
ever go through Local 181, and have the men that would work under me,
if I were to be promoted foreman over them, I would belong to the same
Local they belonged to, to keep down resentment, and I hope to go down
there in the near future to become equipment foreman.
Connolly refused Henry clearance. He told Henry that he had "plenty of
men here in this Local" and as far as he was concerned Henry did not have
"enough money to buy a book or card in [his] Local, until his membership has
been depleted." Telephoning Curlee, Henry related his conversation with
Connolly. Curlee remarked that his hands were tied by that decision. However,
he promised Henry to see what he could do. But Henry never heard from Curlee
again.
Both Curlee and Connolly were called as witnesses. Curlee testified that he
had no recollection of having conferred with Henry on January 12, 1951, explain-
ing that he had seen hundreds of people at about that time. According to hint,
he did not believe that he ever made any statement to Henry such as, "You get
cleared through the Union and the job is yours." He declined, however, to state
215233-53-46
710 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
positively that there was no such conversation. Connolly, although recalling
that he had spoken to Henry on another occasion concerning clearance for a job
on another construction project, testified that he could not recall the telephone
conversation to which Henry had referred in his testimony. Although stating
at one point of his examination that he was "fairly positive" he neither talked
to Henry on the telephone nor denied him clearance for work at the Respondent
Company, he refused at another point to deny categorically that such a conversa-
tion occurred.
To the extent the testimony of Curlee and Connolly may be considered as in
conflict with that of Henry, I credit Henry, who by his over-all testimony and
demeanor impressed me as a sincere and candid witness. But even on this basis,
I am not persuaded that the General Counsel has sustained his burden of proving
the allegations of the complaint with regard to the discriminatory refusal to hire
Henry. For, as the General Counsel concedes, in order to establish the failure and
refusal to hire Henry as discriminatory within the meaning of the Act, it is
essential to show that the job for which he was denied employment was of a non-
supervisory character. And it is in that respect that the General Counsel's proof
appears to me to fall short of the mark.
While agreeing that the job for which Henry originally applied-that of equip-
ment foreman--is a supervisory one, the General Counsel contends that this was
not the job for which he was asked by Curlee to clear with the Respondent Local.
The General Counsel bases his contention principally upon Henry's expressed
willingness in his conversation with Curlee to "qualify" by proving his worth,
and this he buttresses by pointing to uncontradicted testimony to the effect
that the Respondent Company did not clear supervisory personnel through the
Respondent Local. From these circumstances, lie would have me infer that
Curlee, in stating to Henry that the job was his upon clearance from the Union,
had reference to a nousupervisory job for which Henry would be hired at,least
temporarily until he had established his qualifications for the supervisory
position.
The evidence upon which the General Counsel relies may be open to that
interpretation ; yet I find it too equivocal substantially to support a legal infer-
ence to that effect. The only job for which Henry had made written application
was that of equipment foreman ; there had been no specific discussion of any
rank-and-file job-such as shovel operator, crane operator, or bulldozer operator,
to mention but a few within the union's craft jurisdiction-and the more reason-
able inference to be drawn from the language used is that, in referring to "the
job," using the definite article, Curlee was alluding to the only position for which
Henry had applied and the only one under specific consideration. True, Henry
expressed the understanding that he would have to qualify for that job, and
Curlee agreed. But this exchange is too ambiguous upon which to rest a find-
ing of a mutual understanding that'Henry was to be hired first in a nonsuper-
visory capacity. To "qualify" for a job does not necessarily presuppose employ-
ment in a rank-and-file capacity. That may have been in the mind of Henry,
but, as his own testimony shows, he neither communicated it to Curlee nor did
Curlee say anything to indicate that he shared that meaning. And from the
form of the conversation itself, as reported by Henry, I am unable to conclude
that what was Henry's intent was also Curlee's. The fact that Curlee asked
Henry to clear through the Union, a practice ordinarily confined to nonsuper-
visory personnel, does, to be sure, suggest that Curlee may also have intended
a rank-and-file job for Henry. But even this additional circumstance does not
in my opinion provide a sufficient basis for such a finding. For it is equally open
to the interpretation that the Company desired to assure itself that Henry as
F. H: McGRAW AND COMPANY 711
a foreman would not be persona non grata with the Union whose members would
have to work under him. That such an interpretation is not entirely unreason-
able isfto some extent at least reflected in Henry's own!testimony, that in request-
ing clearance of Connolly he stated as one of his reasons a desire to avoid resent-
ment from the men who might later be required ;to work under him as foreman.
Although the case is close, I am unable to say on this record that enough has
been shown to support a finding that Henry applied for,, and was denied, a non-
supervisory job. Accordingly, I shall recommend dismissal of such allegations
of the complaint as plead that the Respondent Company discriminated against
Henry in violation of Section 8 (a) (1) and 8 (a) (3) of the Act and that the
Respondent Unions attempted to cause and did cause such discrimination in
violation of Section 8 (b) (1) (A) and 8 (b) (2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Such of the activities of the Respondents set forth in Section III, above, as
have been found to constitute unfair labor practices, occurring in connection
with the operations of the Respondent Company described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents , and each of them, have engaged in unfair
labor practices , it will be recommended that they be ordered to cease and desist
therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record
in the dca'se,` I make the following :
CONCLUSIONS OF LAW
1. International Union of Operating Engineers, A. F. L., and its Local 181,
are labor organizations within the meaning of Section 2 (5) of the Act.
2. By questioning applicants for employment in regard to their union mem-
bership, thereby interfering with, restraining, and coercing employees in the
exercise of rights guaranteed by Section 7 of the Act, the Respondent Company
has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
3. By continuing in existence, maintaining in effect, entering into, and en-
forcing, on and after January 1, 1951, agreements, understandings, and prac-
tices, conditioning the hire and tenure of employment upon membership and
standing in the Respondent Unions in contravention of Section 8 (a) (3) of
the Act, the Respondent Company discriminated in regard to the hire and tenure
of employment and terms and conditions of employment of employees and appli-
cants for employment, thereby encouraging membership in the Respondent
Unions, and interfered with, restrained, and coerced employees in the exercise
of rights guaranteed in Section 7 of the Act, and by such conduct the Respondent
Company has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) and 8 (a) (3) of the Act.
4. By their participation along with the Respondent Company in continuing
in existence, maintaining in effect, entering into, and enforcing, on and after
January 1, 1951, the aforesaid agreements, understandings, and practices, the
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Union attempted to cause and did cause the Respondent Company
to discriminate against employees and applicants for employment in violation
of Section 8 (a) (3) of the Act, and also restrained and coerced employees
in the exercise of rights guaranteed in Section 7 of the Act, and by such con-
duct the Respondent Unions have engaged in and are engaging in unfair labor
practices within the meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
5. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
6. The Respondents have not engaged in unfair labor practices, as alleged in
the complaint, as a result of the failure or refusal of the Respondent Company
to employ Albert G. Henry.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT interrogate our employees or applicants for employment
concerning their union affiliations.
WE WILL NOT require employees or applicants for employment to obtain
clearance or job referrals from INTERNATIONAL UNION OF OPERATING ENGI-
NEERS, A. F. L., or its LOCAL 181, or from any other labor organizati'Gn,
as a condition of employment, except under a nondiscriminatory arrangeiiieht
permitted by Section 8 (a) (3) of the Act.
WE WILL NOT perform, enforce, or give effect to the closed-shop provisions
of our contract with the International Union of Operating Engineers, dated
July 29, 1948, and/or the preferential hiring provisions of our oral agreement
or understanding with Local No. 181 of said International adopting the
standard form of collective bargaining agreement of said Local, or enter into
or enforce any extension, renewal, modification, or supplement thereof, or
any superseding agreements with the said labor organizations containing
union-security provisions, except as authorized by the proviso to Section 8
(a) (3) of the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of rights guaranteed by Section 7 of
the Act.
All our employees are free to become, remain, or to refrain from becoming or
remaining , members of the above-named unions, or any other labor organization,
except to the extent that this right may be affected by an agreement in conformity
with Section 8 (a) (3) of the Act. We will not discriminate in regard to hire or
tenure of employment or any term or condition of employment against any
employee or applicant for employment because of membership in or nonmem-
bership in any such labor organization.
F. H. MCGRAW AND COMPANY,
Employer.
Dated -------------------- By -----------------------------------
(Representa tive) (Title)
This notice must remain posted for 60 days from the date hereof , and must
not be altered, defaced, or covered by any other material.
HUNTSVILLE MANUFACTURING COMPANY 713
Appendix B
To ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING ENGINEERS , A. F: L.,
AND ITS LOCAL 181 AND TO ALL EMPLOYEES OF AND APPLICANTS FOR EMPLOY-
MENT WITFI F. H. MCGRAW AND COMPANY
Pursuant to the recommendations of a Trial Examiner 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 cause or attempt to cause F. H. MCGRAw AND COMPANY to
require employees or applicants for employment to obtain clearance or job
referrals from us, or either of us, as a condition of employment , except under
a nondiscriminatory arrangement permitted by Section 8 (a) (3) of the Act.
WE WILL NOT perform or give effect to the closed-shop provisions of the
undersigned International 's written collective bargaining agreement with
said company, dated July 29, 1948, and/or the preferential hiring provisions
of the undersigned Local's oral agreement or understanding with said com-
pany adopting the standard form of collective bargaining agreement of said
Local , or enter into , or enforce any extension , renewal, modification, or
supplement thereof, or any superseding agreements with said company,
containing union-security provisions , except as authorized by the proviso
to„Seetion 8 (a) (3).
WE WILL NOT cause or attempt to cause the said company to discriminate
in any manner against its employees or applicants for employment in viola-
tion of Section 8 (a) (3).
WE WILL NOT in any like or related manner restrain or coerce employees
of F. H . McGRAw AND COMPANY in the exercise of the rights guaranteed to
them by Section 7 of the Act.
INTERNATIONAL UNION OF
OPERATING ENGINEERS , A. F. L.,
Labor Organization.
Dated -------------------- By ----------------------------------------
(Title of Officer);
LOCAL 181, INTERNATIONAL
UNION OF OPERATING ENGINEERS , A. F. L.,
Labor Organization.
Dated -------------------- By ----------------------------------------
,(Title of Officer),
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced , or covered by any other material.
HUNTSVILLE MANUFACTURING COMPANY and TEXTILE WORKERS UNION
OF AMERICA , CIO. Case No. 10-CA-1401. June 13, 1952
Decision and Order
On March 24, 1952, Trial Examiner Albert P. Wheatley issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
99 NLRB No. 113.