American Flint Glass Workers' Union, Etc.

National Labor Relations Board - Board Decisions

Sep 22, 1961

133 N.L.R.B. 296 (N.L.R.B. 1961)

296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining session as to the machine shop unit , but merely an exploratory meeting.
Moreover, Crotty was gathering the material to present to Eubanks who, by reason
of his position , was the officer who ultimately had to make the decision of whether
to continue to deal with the Union . Eubanks' hesitation in making this decision is
understandable in the light of the grave consequences that could , and in this case did,
result from such decision . However , he did make the decision before any bargain-
ing of any consequence occurred with regard to the machine shop employees.
The failure of Crotty to fully set forth to Garnes why the Respondent had doubts
as to the Union 's majority status is explained by the impression of Crotty that he
did not have to explain the basis for his doubt if the Respondent refrained from
antiunion activity and filed a representation proceeding . 17 In all of the circum-
stances here presented this explanation is entirely plausible. The failure to explain
does not , in and of itself , establish lack of good faith.
Upon all of the foregoing , therefore , I find that the Respondent did have a good-
faith doubt as to the Union's majority status when it refused to further bargain with
the Union. I cannot, upon the evidence presented, find that the Respondent's refusal
to bargain , its insistence upon an election , and its filing of a representation petition was
merely a "gimmick ," as contended by the Union , which was motivated by a rejection
of the principles of collective bargaining or by the desire to seek time in which to
destroy the Union 's majority status . Accordingly , I shall recommend dismissal of
the complaint.ls
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent did not engage in an unfair labor practice in violation of Section
8 (a) (5) and ( 1) of the Act, as alleged in the complaint.
[Recommendations omitted from publication.]
171 do not pass upon Respondent 's contention that its filing of the petition and its
refraining from antiunion activity satisfied the requirements of the Act and that It did
not have to show more to establish its defense. Since the entire record established good
faith I do not need to consider the narrower basis of defense
1H I do not find N L .R B v. Auto Ventshade, Inc., 276 F 2d 303 (CA. 5 ), dispositive.
Aside from the 'fact that the Respondent here does not deny its initial obligation to
bargain as a successor , in that case the decertification petition relied on by the employer
as proof of its alleged good -faith doubt was filed long after the refusal to bargain.
American Flint Glass Workers' Union of North America, AFL-
CIO and Glass Container Manufacturers Institute . Case No.
8-CB-406. September 22, 1961
DECISION AND ORDER
On July 8, 1960, Trial Examiner Charles W. Schneider issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in certain unfair labor practices and
recommending that the complaint be dismissed, as set forth in the
Intermediate Report attached hereto. Thereafter, the General Coun-
sel and the Charging Party filed exceptions to the Intermediate Re-
port 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 Inter-
133 NLRB No. 47.
AMERICAN I FLINT GLASS WORKERS' UNION, ETC. 297
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tion of the Trial Examiner.
The reasons advanced by the General Counsel and relied upon by
our dissenting colleague for finding the disputed clause in the case to
be illegal were rejected by the Trial Examiner after thorough and
careful analysis. For the reasons fully detailed in the Intermediate
Report, we agree with the Trial Examiner's view that article 7 of the
contract between the Respondent and the Institute does not provide
for a closed shop and also does not grant to Respondent a 30-day ex-
clusive referral period. Moreover, even assuming that article 7
granted exclusive referral rights for 30 days, this would not render
the contract unlawful, nor does the record show any discrimination
in its enforcement.'
[The Board dismissed the complaint.]
MEMBER RODGERS, dissenting :
I would not dismiss the complaint here.
Since 1948, the Respondent and the Institute have maintained and
enforced a series of bargaining contracts containing the following
clause :
ARTICLE 7: EMPLOYMENT-In the event the Manufacturer
is unable to secure competent Journeymen Mould Makers, the
Manufacturer shall request the [Union's] shop committee to sup-
ply Journeymen Mould Makers, and if competent Journeymen
Mould Makers are not furnished within 30 days after the com-
mittee has been notified, then the Manufacturer shall have the
privilege to draw labor from any source, and at least the mini-
mum rate shall be paid to anyone hired and placed on a Mould
Making job. Application for work shall be made to the employ-
ment department of the Manufacturer.
In 1959, when the parties were discussing a renewal contract, the Re-
spondent insisted upon the retention of this clause. When opposition
to this demand was offered by the Institute, the Respondent struck to
enforce its position. Ultimately the Institute agreed to retain the
clause, and the parties have maintained and enforced this clause to
date.
As properly noted by the Trial Examiner, the resolution of the vio-
lations alleged in the complaint hinges upon the construction given to
1 See Local 357, International Brotherhood of Teamsters, Ohauffeure, Warehousemen
and Helpers of America ( Los Angeles -Seattle Motor Express ) v. N.L.R.B., 365 U.S. 667,
decided after the issuance of the Intermediate Report.
Without implying any agreement or disagreement with the Board's decision in Ebasco
Services, Incorporated, 107 NLRB 617, in which we did not participate , and upon which
our dissenting colleague relies, we note that that case is a factually distinguishable one.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
:article 7 of the contract. My colleagues are finding that the term
`Journeymen Mould Makers" is synonymous with the word "crafts-
men," and that article 7 does not, therefore, establish the requirement
,of union membership as a condition of employment. In my opinion
this interpretation is unrealistic.
In the context of this case it is clear that the term "Journey-
men Mould Makers" means members of Respondent. During the 1959
bargaining negotiations, Mr. Martin, principal spokesman on behalf
'of the Institute, repeatedly stated to the Respondent that he construed
the phrase to mean members of the American Flint Glass Workers'
Union, and that the retention of the clause in succeeding contracts
would therefore be unlawful because it provides for a closed shop and
preferential hiring in favor of Respondent's members.2 At no time
did the Respondent deny, or explain away, the accuracy of this in-
terpretation; its only comment was that the clause was legal. In fact,
during the course of these same negotiations, the Respondent's presi-
dent stated that article 7 should be retained because "it was only fair
that the Union should have thirty days in which to supply Journey-
men Mould Makers so that the Union could keep the industry supplied
with union mould makers" [emphasis supplied]. Furthermore, the
Respondent strenuously objected to a substitute provision offered by
the Institute which would have eliminated the mandatory requirement
in article 7 that for 30 days Institute members must exclusively rely
upon the Respondent for the supply of workers?
In view of the foregoing, it seems apparent that the phrase "Jour-
neymen Mould Makers" means members of Respondent and that Re-
'spondent's insistence upon retaining article 7 was to ensure retention
,of the sole channel of employment for its members. Thus article 7
means that the employer-members of the Institute obligate themselves
to hire only members of Respondent-an obligation which clearly con-
stitutes a closed shop and which is illegal under the Act .4 Further-
more, article 7 means that in the event the employer-members of the
Institute are unable, on their own initiative, to'secure members of the
2 This construction of the meaning of article 7 is further bolstered by the fact that dur-
ing the negotiations spokesmen for the Institute repeatedly raised the question of the
potential cost liability which would arise under the Board's Brown- 01d8 remedy in the
event the parties continued to accord preferential treatment to Respondent 's members
The Institute expressly pointed out to the Respondent that if the 48-hour exclusive
preference provided under the contract in the Mountain Pacific case was deemed to be
violative of the Act , then the 30-day provision in article 7 was clearly illegal . Although
the Institute then asked the Respondent to make comment upon this position , neither
comment nor question followed.
3 As noted , article 7 requires that "the Manufacturer shall request the (Union's] shop
committee to supply Journeymen Mould Makers ." On September 11, 1959 , the Institute
proposed the deletion of the word "shall" so that article 7 would lead as follows • "the
Manufacturer may request his shop committee to supply a list of names of Journeymen
Mould Makers from which he may fill the job opening " [ Emphasis supplied .] ' This
substitute was rejected by the Respondent.
• Ebasco Services , Incorporated, 107 NLRB 617, 618
AMERICAN FLINT GLASS WORKERS' UNION, ETC. 299
Respondent, they are additionally obligated to relinquish their right
to hire any other applicants for 30 days; and during that period the
Respondent is the sole and exclusive source for obtaining employees-
i.e., the sole source from which only union members can be obtained.
Thus, article 7 not only establishes a closed shop, but it also establishes
a discriminatory, exclusive referral arrangement. Article 7, therefore
necessarily encourages union membership unlawfully.
In sum, I would find that the Respondent caused or attempted to
cause the employer-members of the Institute to discriminate against
their employees in violation of Section 8(b) (2) of the Act, by engag-
ing in a strike to obtain the unlawful clause and by executing and
maintaining a contract containing such clause .5 I would further find
that the Respondent refused to bargain in good faith in violation of
Section 8 (b) (3) of the Act, by insisting, to the point of impasse dur-
ing bargaining negotiations with the Institute, that the unlawful
clause be included in any agreement reached between the parties.'
5 Bricklayers , Masons and Plasterers International Union, at at . ( Selby-Battersby &
Company), 125 NLRB 1179, 1183.
6 N.L.R .B v. Wooster Division of Borg -Warner Corp ., 356 U , S 342 ; Bricklayers , Masons
and Plasterers International Union, at at , id, at p. 1184.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed by Glass Container Manufacturers Institute , New York,
New York , against American Flint Glass Workers' Union of North America,
AFL-CIO, Toledo, Ohio , the Respondent Union herein , the General Counsel issued
a complaint and amended complaint alleging violations of the National Labor Rela-
tions Act, 61 Stat. 136.
In substance the complaints alleged that by insisting in collective -bargaining
negotiations with the Institute upon a certain contract clause, more specifically
described hereinafter , by striking to secure such clause, and by thereafter executing
a contract containing it, the Respondent Union violated Section 8(b) (2) and (3)
of the Act. The Respondent filed an answer denying the commission of unfair
labor practices.
Upon due notice, a hearing was held at Toledo , Ohio , on March 15 , 16, and 17,
1960 , before the duly designated Trial Examiner. All parties appeared, were repre-
sented by counsel , participated in the hearing, and were afforded full opportunity
to present and to meet evidence, to engage in oral argument , and to file briefs
and proposed findings.
Upon the basis of the entire record in the case, and after consideration of all the
relevant evidence and contentions , and the testimony and demeanor of witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE INSTITUTE
The Institute , the Charging Party herein , is and has been at all times material
a corporation organized and existing under the laws of the State of Ohio , with its
principal office located in New York City. It is a trade association handling
problems of mutual interest to the glass container industry, and is the authorized
bargaining representative of 33 member companies engaged in the business Of
manufacturing glass containers ; and operating 80 glass container plants located in
various States throughout the United States. In this capacity the Institute, on behalf
of its member companies , negotiates industrywide agreements with the Respondent
Union . The annual sales of the companies exceed $ 1,000 ,000,000 , and each of said
companies annually ' ships finished products valued in excess of $50,000 to points
outside the State in which its plants are located. ' . ' '
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is admitted that the Institute and its members, herein sometimes referred
to as the Employers, are all engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
If. THE LABOR ORGANIZATION INVOLVED
American Flint Glass Workers' Union of North America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The basic issue, simply stated, is whether a clause relating to hiring which, for
a number of years, has been in collective-bargaining contracts between the Institute
and the Respondent, and covering mould makers and mould making apprentices,
is illegal in that it requires preferential hiring of union members and is closed shop.
This clause, referred to as article 7 (its number in the 1957 contract), reads as
follows in that agreement:
ARTICLE 7
EMPLOYMENT
In the event the Manufacturer is unable to secure competent Journeymen
Mould Makers, the Manufacturer shall request the [Union's] shop committee
to supply Journeymen Mould Makers, and if competent Journeymen Mould
Makers are not furnished within 30 days after the committee has been notified,
then the Manufacturer shall have the privilege to draw labor from any source,
and at least the minimum rate shall be paid to anyone hired and placed on a
Mould Making job. Application for work shall be made to the employment
department of the Manufacturer.
The clause was continued in the 1959 contract (adopted November 2, 1959, and
effective September 1, 1959, thru August 31, 1961) as article No. 9 thereof, under
circumstances to be related; with the addition of a caveat to the effect that the
legality of the provision was under consideration by the Board and would be deleted
if found to be illegal. The caveat reads as follows:
(The legality of this article is being considered by the National Labor Relations
Board. If it is found to be illegal then it shall become inoperative and shall
be deleted from the contract.)
Mould making is a skilled craft, generally requiring the serving of a 4-year
apprenticeship, certain elements of which are regulated by contract provisions.
Union membership is not a condition of becoming an apprentice, though apparently
all apprentices are union members. Apprentices are selected by the employer. At
the end of the apprenticeship period the determination as to whether an apprentice
is qualified to become and to be employed as a finished mould maker is determined
by the employer; the Union has no control in the matter. There are about 3,000
journeymen mould makers in the country; some 2,600 of them in the glass industry,
about 2,000 of whom are covered by the Institute contract. All or substantially all
mould makers in the glass container industryare members of the Respondent Union.'
The Genesis of Article 7
For many years mould makers and apprentices employed by members of the
Institute have been represented by the Respondent Union pursuant to collective-
bargaining contracts on an industry basis. Prior to 1948 those contracts specifically
provided for members of the Union to be given preference in hiring. Thus the
1947 contract contained the following hiring clause:
RULE 1.-The right of employer to hire and discharge employees is hereby
acknowledged, and it is understood that when mould makers are needed,
members of the American Flint Glass Workers' Union shall be given preference.
In the event of employer being unable to secure competent Union mould
makers, the Management shall request the Shop Committee to supply Union
mould makers nand if competent Union mould makers are not furnished within
1 There is some dispute, unnecessary to resolve, as to whether there are any nonunion
mould makers. Charles M. Scheff, president of the Union, testified that there are such.
On the other hand, A. J. Martin, director of labor relations for the Institute, testified that
he knew of no nonunion journeymen mould makers. The precise fact is not of critical
importance.
AMERICAN FLINT GLASS WORKERS' UNION, ETC. 301
thirty (30) days after the Committee has been notified, then the employer
shall have the privilege to draw labor from any source, and at least the minimum
rate shall be paid to anyone hired and placed in a Union job.
Following the passage of the Taft-Hartley Act, which made such preference
illegal, this clause was revised in order to comply with the amended Act. At that
time the language was changed to its present form.
The Thatcher Case
Thatcher Glass Manufacturing Company, Inc., is one of the members of the
Institute covered by the collective-bargaining contracts. In May 1957, in a case
involving that Company, the Board held that the preamble of the 1955 contract
contained a union-shop clause. (Thatcher Glass Manufacturing Company, Inc.,
117 NLRB 1724.) In that case an employee of Thatcher was laid off for failure
to make certain payments to the Union. The defense of the Company and the
Union was that the contract contained a union-security agreement in the preamble
thereof. The preamble stated, in pertinent part, that
This contract . . . is a union shop contract through which the Manufacturers
recognize the Union as the sole collective bargaining agent for all em-
ployees . . . , in accordance with existing Federal and State statutes.
The preambles of the 1957 and 1959 contracts contain that identical language.
In the Thatcher case the Board concluded, on the basis of the evidence, that the
parties intended by the preamble to, and did, enact a lawful union-shop clause re-
quiring employees to acquire and maintain membership in the Union after 30 days'
employment. The Board further found the practice at Thatcher to be to enforce
that clause. Consequently the Board held that the 1955 contract was "a valid union-
security agreement consistent with the Act's requirements . a lawful union
security agreement." However, the General Counsel there did not contest the
legality of the arrangement. The sole question presented was whether the quoted
language from the preamble constituted a union-shop clause.
In the Thatcher decision it is also stated that in 1948 the parties dropped the
preferential hiring requirement. Thus, Trial Examiner Thomas N. Kessel's Inter-
mediate Report, adopted by the Board, relates that "The first contract between the
parties executed in 1948 after enactment of the Taft-Hartley amendments dropped
the preferential hiring provision."
On the basis of the Thatcher decision I find (1) that at least since 1955 the con-
tracts have contained a union-shop clause in the preambles thereof, and (2) that the
1948 contract dropped the requirement for preferential hiring of union members.
Nevertheless, despite the Thatcher decision, and notwithstanding that the 1959
contract contains the identical language found in Thatcher to establish a union shop,
the 1959 contract incorporates a new and additional article, not found in any previous
contract, entitled "Union Shop." This article is as follows:
ARTICLE 2
UNION SHOP
Employees who are members of the Union on the effective date hereof shall
continue their membership in the Union for the duration of this contract; new
employee to membership who is ineligible for Union membership or to issue a
the date it is signed, or the date on which their employment begins, whichever
is later, become and remain members of the Union for the duration of this con-
tract. Nothing herein shall be construed as requiring the Union to admit any
employee to membership who is ineligible for Uniin membership or to issue a
Journeyman Mould Maker card to any employee who has not completed his
apprenticeship. The provisions of this Article shall be administered in accord-
ance with Section 8-a(3) of the National Labor Relations Act and other appli-
cable federal and state laws.
The General Counsel's evidence indicates that this provision was included at the
insistence of counsel for the employers out of an abundance of caution.
The 1959 Negotiations
According to the testimony of A. J. Martin, during the 1952 negotiations and on a
number of occasions thereafter he suggested to the union representatives that article 7
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be eliminated from the contract, giving as reason therefor that the provision gave
preference to union members in employment and would be considered a closed-shop
contract by the Board and the courts. On each such occasion the Union's only
response , in sum, was that the clause was legal and should remain.
On February 28, 1956, the Board handed down its decision in the so-called Brown-
Olds case (United Association of Journeymen & Apprentices of Plumbing & Pipe-
fitting Industry, et al. (J. S. Brown, et a!.), 115 NLRB 594). The Board there held,
in sum, that in cases involving illegal preferential hiring or closed-shop agreements
the respondent employers and unions should be required to reimburse all employees
covered by the agreement for all dues and other payments made to the union be-
ginning 6 months prior to the date of service of the unfair labor practice charge.
In the 1959 negotiations the employers unsuccessfully proposed the deletion of
article 7. Their representatives stated, in that connection, that prior to the Brown-
Olds case an illegal union-security clause merely made the contract not a bar to an
election, but that Brown-Olds had added substantial elements of financial liability
which the employers wished to avoid. The Union's reply was, in sum, as before: the
general response that the clause was legal and should remain in the contract until
there was a contrary ruling.
The 1959 negotiations began in Atlantic City, New Jersey, about July 21, 1959,
and concluded in Pittsburgh, Pennsylvania, on November 2 with the execution of
the 1959 contract referred to above. From September 13 to November 2, the Union
was on strike and picketed the employers' operations because of inability of the
parties to reach agreement on a number of outstanding issues-among them the
proposed deletion or amendment of article 7.
At the time the strike began the parties were in disagreement with regard to several
contract issues; specifically, article 7, wages, holidays, grievance or arbitration pro-
cedure, hours of work, and no-strike no-lockout and expiration provisions. On
September 15, 2 days after the strike began, the Institute filed the instant charge.
On October 20 the employers agreed to the Union's proposal -to continue article 7,
with agreement that the Union would abide by any final decision on the unfair labor
practice charge. Negotiations continued on the other outstanding issues until accord
was reached on all points. The ultimate agreement with respect to article 7 included
the addition to the contract of the new union-security clause, article 2, quoted above.
During the negotiations the employers revised their proposals on article 7 a num-
ber of times in an effort to secure acceptance by ,the Union, but the Union's position
remained throughout substantially unchanged.
The employers' first proposal on the subject was to delete article 7, and to give
the Union a security clause similar to that ultimately adopted. In addition, the
employers proposed that the Union indemnify them from liability in connection with
enforcement of the security clause-a provision which the employers abandoned
shortly thereafter. In August the employers suggested a sentence to the effect that
at least the minimum rate would he paid to anyone working in a journeymen mould
making job. The apparent reason for this action was that some of the union repre-
sentatives had intimated that the real ground for the employers' insistence upon
elimination of article 7 was to avoid obligation to pay the journeymen's scale. It
has been seen that article 7 required the payment of minimum rates to anyone
working a mould making job. Just prior to the strike the employers submitted a
revised proposal, the effect of which was to retain article 7 with changes in certain
language which the employers regarded as objectionable. That proposal was that
article 7 read as follows:
In the event a Manufacturer is unable to secure qualified employees to fill open-
ings on mould making jobs, the Manufacturer may request his shop committee
to supply a list of names of Journeymen Mould Makers from which he may
fill the job opening. At least the minimum rate shall be paid to anyone hired
and placed on a journeyman mould making job. Application for work shall be
made to the employment department of the Manufacturer.
We turn now to the conclusions to be drawn from these events.
Concluding Findings
The General Counsel contends that article 7 is illegal, both by itself and as inter-
preted; further that by insisting to the point of impasse upon article 7, by striking
to enforce its demands for such provision, and by entering into the 1959 contract
'containing it, the Union attempted to and did cause the Institute and its members
to discriminate illegally against employees and refused to bargain collectively in good
faith.
AMERICAN FLINT GLASS WORKERS' UNION, ETC. 303
The General Counsel concedes that the violations hinge entirely on the illegality
of article 7: if the article is not unlawful it involved conditions of employment upon
which the Union would be legally entitled to insist as a condition of agreement, and
for which it could validly strike to secure acceptance by the employers. On the
other hand, if article 7 is unlawful it was a refusal to bargain for the Union to
make its retention a substantial issue in the negotiations. National Maritime Union
of America, et a!., 78 NLRB 971, 981-982.
Article 7, the General Counsel says, is both illegal per se and as properly con-
strued. He also has alternative theories as to the illegality of the article. First, he
maintains, the phrase "Journeymen Mould Makers" means members of the Flint
Glass Workers' Union. Secondly, he says, even if the phrase is not to be so inter-
preted, article 7 is invalid because it gives the Union exclusive right to provide
journeymen mould makers to the employers during the 30-day period specified
therein-such a monopoly under the circumstances contravening the principles laid
down by the Board in the Mountain Pacific case (119 NLRB 883, 893, et seq.).2
The General Counsel's contentions in support of this position may be stated as
follows.
The Institute's negotiators for several years told the Union that the clause re-
quired the employers to prefer union members and amounted to a closed shop,
without denial by the Union that the contract should be so construed. Moreover,
the Union never explained to the employers' representatives its reasons why the
article was legal. In addition, during the negotiations Union President Scheff
assertedly said that the union officers felt that since article 7 was legal, it was
only fair that the Union should have 30 days in which to supply journeymen
mould makers so that, the Union "could keep the industry supplied with union
mould makers." At another point in the negotiations, in late August, President
Scheff assertedly said that unless the employers accepted the union position on
article 7 the parties would "be here for a long time."
The General Counsel advances further considerations as supportive of his
position. Thus, he says, the Union was apparently not satisfied with the union-
shop provision offered by the employers, therefore it must have desired something
more-and illegitimate-in the way of union security. Certain portions of the
union constitution are alleged to require unlawful union preference, the most sig-
nificant being a clause to the effect that "accepting work in a non-union house
without first having obtained permission from the International Union" is conduct
"unbecoming a member," subjecting one to "fine or expulsion or both" (article
XVI, section 3(e)); and another to the effect that members shall "endeavor to
establish and make permanent and use all honorable efforts to secure employment
for any member of this Union in preference to all others" (preamble). In addi-
tion, the contract defines mould making and gives jurisdiction to the Union over
all such work. This, the General Counsel contends, is unlawful when considered
in conjunction with the constitutional provisions. There is also significance,
according to the General Counsel, in the fact that the phrase "Journeymen Mould
Makers" is capitalized. The final contention is that if all members of a craft are
union members, it is unlawful for an employer to contract to hire only members
of the craft so long as there are other persons capable of doing any part of the work
of the craft.
The Union's position is simply that the article is legal; that the phrase "Journey-
men Mould Makers" merely means craftsmen and not members of the Flint Glass
Workers' Union; that the purpose of the article is to prevent the dilution of the
craft by the hiring of unskilled or incompletely skilled persons to fill mould making
jobs; and that the Union has no exclusive right at any time to provide labor for
the employers.
The various contentions of the parties are either specifically or necessarily
disposed of in the following discussion and findings.
I find the General Counsel's contentions unsustained. It is my conclusion and
judgment that article 7 neither requires the hiring of union members nor grants the
Union exclusive authority to supply employees to the employers at any time. In
addition, I find that the employers retain authority to reject any job applicants
referred by the Union.
2 The Mountain Pacific decision sets up certain standards governing agreements giving
a union exclusive authority to hire or to supply labor for an employer Briefly, to be
legal, such agreements must provide explicitly (1) that selection of employees be on a
nondiscriminatory basis unrelated to union considerations of, any kind, (2) that the em-
ployer retain the right to reject any, job applicant referred- by the, union, and (3) that
all provisions of the hiring arrangement be adequately posted
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Journeymen Mould Makers"
Article 7 is clear and unambiguous. The word "journeyman" is a word of
common usage defined by standard authorities as follows.
Webster's New International Dictionary, 2d ed.: "... a worker who has learned
a handicraft or trade."
The Century Dictionary: "A workman or mechanic who has served his appren-
ticeship; specifically a qualified mechanic employed in the exercise of his trade."
Funk and Wagnalls College Standard Dictionary: "A mechanic who has learned
his trade."
Dictionary of Occupational Titles, 2d ed.: "A general term applied to a worker
who has served a specified period of time as an apprentice in learning a trade or
craft."
In the interpretation of a contract words are to be given their ordinary meaning
unless the circumstances indicate that a different construction has been adopted by
the parties. Restatement of Contracts, 235; 12 American Jurisprudence, Contracts,
236. And where the words of an integrated written agreement are unambiguous,
their meaning is to be determined from the agreement itself. Parol evidence
cannot alter the interpretation derived from a distributive reading of the instrument.
The Board has said, ". . . we will not accept parol evidence to establish modifi-
cation of written union-security agreements." Jersey Contracting Corp., 112 NLRB
660, 662.
Nothing in the contracts here suggests that the phrase "Journeymen Mould
Makers" was intended by the parties to mean anything other than craftsmen qualified
to engage in the occupation of mould making. The suggestion that it meant a
member of the Flint Glass Workers' Union makes surplusage of, and is incon-
sistent with, the valid union-shop provision which the Board found in the Thatcher
case to have been incorporated in the contract. For if article 7 established a
closed shop, the union shop in the preamble is both redundant and without appli-
cation: An employee cannot have 30 days in which to join the Union if he must
be a member before he can be hired. In this connection it will be noted that
article 10 of the 1957 contract and article 12 of the 1959 contract contain references
to "Union Journeymen Mould Makers"; [emphasis supplied] suggesting that where
the parties intended to refer to union associations they did so explicitly.3
The construction urged by the General Counsel suggests that the parties neither
effected nor intended any change when they modified the contracts after the passage
of the Taft-Hartley Act. While this, of course, could be possible, there is no
substantial evidence from which to infer such artifice. Moreover, that conclusion
would require me to make a finding contrary to the Board's holding in the Thatcher
case to the effect that the preferential hiring provisions were eliminated from the
contracts following the Taft-Hartley amendments.
I therefore find that article 7 is not to be interpreted in its contractual context
as importing a requirement of union membership as a condition of, or consideration
in, hiring.
Nor is there any substantial basis in facts dehors the contract to vary the ordinary
meaning of its language. There is no competent evidence that article 7 was ad-
ministered in preferential or illegal fashion, or any instance of an applicant
for employment being required or requested to establish membership in the Union
as a condition of hiring. There is no evidence of publication of any such policy,
either by the employers or by the Union, unless the assertions (referred to above)
by employer representatives to the Union be considered such. There is no evidence
of any interpretations or instructions issued by responsible employer officials
establishing a policy of requiring union membership as a condition of hiring, or
giving preference in employment to union members. There is no competent evi-
dence that the Union ever insisted that article 7 should be so construed or
interpreted .4
s The reference in those articles is to the apprentice program. They provide, in part,
that each mould shop employing two or more "Union Journeymen Mould Makers" shall
be entitled to one or more apprentices, in accordance with the number of journeymen
mould makers employed.
`A. J. Martin testified that he had been informed that certain unidentified union
officials on a local level had taken the position that "Journeymen Mould Makers" meant
union members. Such evidence was excluded as hearsay. No direct evidence on the
point was offered. Union President Scheff denied that any such interpretations repre-
sented union policy, and denied knowledge of their occurrence. In this connection see
the testimony of Harry J. Mulaney, vice president of Thatcher Manufacturing Company,
AMERICAN FLINT GLASS WORKERS' UNION, ETC. 305
In sum, neither in the words of the contract itself, nor in the practices or inter-
pretations of the parties under it, despite the fact that it has been in existence
approximately 12 years, is there to be found any probative indication that the
phrase "Journeymen Mould Makers" means anything other than craftsmen quali-
fied to perform mould making. The testimony of Union President Scheff is that that
is what the provision means. Nowhere is there any substantial evidence in
contradiction.
It is true that A. J. Martin testified that he construed the phrase to mean a mem-
ber of the Flint Glass Workers' Union. His interpretation, however, was based on
the fact that,, in his view, all journeymen mould makers in the industry are union
members; hence a journeyman mould maker could not be other than a Flint Glass
Worker. Thus, questioned as to the basis for his construction of the phrase, Martin
testified:
My testimony was that a journeyman mould maker was one carrying an
American Flint Glass Workers' Union Journeyman card, and that was based on
the fact that there is no other journeyman mould maker, so far as I know, in
the industry except those in the American Flint Glass Workers' Union. [P. 433.]
And again, ". . . there are no other journeymen mould makers." (P. 448.)
The fact, even if correct (see footnote 1, supra) that all journeymen mould makers
are members of the Union, does not, of course, tend to establish that union mem-
bership is required as a condition of hiring as a mould maker.
That the words "Journeymen Mould Maker" are capitalized might, in appropriate
circumstance, have significance; but does not appear so here. Scrutiny of the con-
tracts reveal a number of other words or phrases which are capitalized without
apparent extracurricular import: "Manufacturer," "Union," "Mould Makers,"
"Apprentice Mould Makers," and "Mould Making Department." The fact that
journeymen mould makers is capitalized in article 7 seems of no material effect on
the issues.
The 30-Day Provision
Apart from his contention as to the meaning of the phrase "Journeymen Mould
Makers," the General Counsel urges that article 7 gives the Union an exclusive right
to supply mould makers during the 30-day period. I do not so interpret it; nor, ap-
parently, do the industry spokesmen. A. J. Martin testified that as the industry
construes article 7, the employers are free to hire a journeyman mould maker at
any time-if they can find one.5
It is therefore found that article 7 does not give the Union exclusive right to supply
journeymen mould makers at any time. It does effectively prevent the filling of
mould making jobs with persons other than journeymen, until the shop committee
has had 30 days in which to find available journeymen for reference. There is no
provision, however, depriving the employer of right to find and hire journeymen
during that period, or denying him right to reject applicants referred by the Uniop.
Article 7 specifically provides that "application for work shall be made to the em-
ployment department of the Manufacturers."
It seems apparent, particularly in view of the scarcity of journeymen mould
makers, that the purpose of the 30-day provision was, as President Scheff testified, to
prevent dilution of the craft; that is, before an employer could hire nonjourneymen
to fill mould making vacancies the Union was to be given a 30-day period in which to
attempt to supply journeymen. This purpose is neither attacked nor does it appear
illegitimate. During the interim the employer is free to hire or reject journeymen.
And at the end of the 30-day period he is free to fill the mould making vacancy
with "labor from any source," skilled or unskilled, so long as he pays the minimum
rate for the classification. It seems fair to conclude, as President Scheff testified, that
one of the reasons the Union desired the retention of article 7 was to minimize the
possibility of dilution of the craft.
I conclude that article 7 did not on its face require preference to union members
in hiring, did not establish a closed shop, and did not give the Union exclusive right
to supply or refer employees to the manufacturers. I further conclude that there is
no substantial evidence that the parties mutually interpreted article 7 to that effect,
or that the administration of the contract or the hiring practices thereunder reliably
reflect any such conditions.
In the Thatcher case at pages 132-133 of that transcript, indicating that at the Thatcher
plant union membership was not a consideration In the hiring of mould makers.
5 The testimony indicates that journeymen mould makers are in such short supply that
some plants have waited months before being able to secure any.
624067-62-vol. 133-21
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That the union representatives did not during the negotiations deny employer sug-
gestions that article 7 did give such preference and constituted a closed shop, and
failed to specify particular reasons in support of the Union 's assertions as to the
legality of article 7, is of no significance in the light of all the circumstances. The
failure of the Union to deny the correctness of the employers ' suggested construc-
tion of the contract is some evidence as to interpretation ; under appropriate circum-
stances it might be dispositive . It is not enough , however, standing alone ; nor is it in
the context of the other facts which we have . For in large measure the em-
ployers ' assertions were legal conclusions apparently based , as we have seen, on the
essentially irrelevant fact that all or virtually all mould makers were union members.
In such circumstances the employers' statements that the article was illegal are no
more probative on the issue that are the Union 's assertions that it was legal.
The failure of the Union to specify particular grounds for its contention as to
legality is also of no significance . The evidence establishes that the Union did not
always explain its position on other issues in the negotiations . Moreover, the em-
ployers did not ask for any specifications . Their testimony is that, knowing the
Union 's position , they were not interested in a statement of its reasons. With regard
to President Scheff 's asserted declaration that it was only fair that the Union should
have 30 days in which to keep the industry supplied with "union mould makers,"
President Scheff could recall no such declaration . He admitted, however, having
said that the Union needed 30 days to find skilled mechanics . I find nothing sinister
in either remark . We have seen that the employers were free to hire journeymen at
all times, and that the Union had no exclusive right to supply or to refer applicants.
In the absence of an exclusive hiring arrangement there is nothing illegal about the
Union referring only unionmen , or attempting to keep the industry supplied with
union mould makers.
That the contract defines and gives the Union jurisdiction over all mould making
in the employers ' plants, and that the Union 's constitution may be construed to forbid
a union member from accepting work in a "non-union house" without permission
from the International, and members bidden to attempt to secure preference and
permanence of employment for union members , does not make the contract unlaw-
ful. In the first place , the union constitution is not incorporated in the contract, and
the employers are not bound to hire through the Union . In such a circumstance
union laws designed to assure closed shop or preferential hiring practices are not il-
legal. Miami Valley Carpenters District Council , et al. (Bowling Supply and Service,
Inc., et al.), 127 NLRB 1073 . In the second place , the union rules involved here
are not necessarily to be construed as requiring closed shop or union preference in
hiring. The phrase "non-union house" may refer only to establishments without
union contracts , or not maintaining union standards. In the absence of evidence of
interpretation no valid conclusion of illegality can be drawn . The provision in the
preamble of the constitution regarding the securing of preference in employment for
union members is modified by the requirement that the effort be by "honorable
efforts." The constitutional clauses are not unlawful in the light of this record; nor
do they create a sinister backdrop for interpretation of the provisions of the con-
tract. Other contentions regarding the constitution do not require consideration.
In the circumstances of this case , the fact that the Union consistently rejected
every suggestion of the employers for modification of article 7 is not evidence of
illegal union motivation or interpretation . Insistence upon the retention of a legal
state of affairs does not become unlawful merely because reasonable alternatives
are suggested-even if they be perhaps more clearly valid . The Union was under-
standably reluctant to abandon familiar language which it considered adequate,
lucid , and proper. Its attitude in this regard was nothing new . Trial Examiner Kes-
sel's Intermediate Report in the Thatcher case (p. 1727) relates how the union year
after year opposed the inclusion in the contracts of specific provision requiring the
acquisition of union membership after 30 days ' employment , on the ground that
the existing language adequately expressed the intent of the parties . A. J. Martin
testified that at one point in the instant negotiations President Scheff told the em-
ployer representatives that article 7 "had been in the contract for twelve years and
nobody had ever been harmed by it and he thought it should remain as written."
Under the circumstances the Union 's insistence upon retention of the language of
article 7 does not import anything improper.
That the contract defines mould making and gives the union jurisdiction over such
work is not controlling . Such a provision does not invalidate a collective -bargaining
contract not otherwise illegal.
Finally , the contention must be rejected that if all journeymen in a craft are union
members, and there are other persons capable of performing some of the work of
PLUMBERS AND PIPEFITTERS LOCAL UNION 142, AFL-CIO 307
the craft , it is unlawful for an employer to contract to hire only journeymen to fill
vacancies in the craft . Such a holding would make it illegal to agree to hire only
plumbers to do plumbing work if pipefitters were capable of doing any of it; stone
masons if bricklayers can lay stone; diemakers if machinists run lathes; roofers where
carpenters can lay shingles. Some of the work of some crafts can be performed
by the traditional handyman . The General Counsel 's contention is rejected. In my
view, so long as the arrangement is not for the purpose of preferring men on the
basis of their union membership rather than on the basis of their probable skill, an
agreement to hire only journeymen in the craft is not illegal . Journeyman status is
an acceptable indicium of likely competence at the trade . Indeed , its very purpose is
to serve as such evidence . Recognition of that fact is not inconsistent with the
statute . In any event, in the instant case, the employers were free to hire non-
journeymen after the 30-day period . Hence they were not completely restricted to
the employment of journeymen.
It is now found that article 7 , and its successor article 9, do not establish closed-
shop or preferential hiring conditions in the plants of Institute members, and are
therefore not illegal . In accordance with the concession of the General Counsel,
under such circumstances the Union was entitled to insist in the negotiations upon such
an article as a condition of agreement . Whether it in fact did so need not , there-
fore, be determined . In view of these findings other contentions of the General
Counsel do not require consideration.
It is found that the evidence does not establish any of the allegations of unfair
labor practices alleged in the complaint . It will consequently be recommended that
the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Glass Container Manufacturers Institute and its employer members are engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent , American Flint Glass Workers' Union of North America,
AFL-CIO, is a labor organization within the meaning of Section 2 ( 5) of the Act.
3. The Respondent has not engaged in any of the unfair labor practices alleged in
the complaint.
[Recommendations omitted from publication.]
Plumbers and Pipefitters Local Union No. 142 , AFL-CIO and
William Matera
Plumbers and Pipefitters Local Union No . 142, AFL-CIO and
Shop-Rite Foods, Inc., d/b/a Piggly Wiggly. Cases Nos.
23-CC-72 and 23-CC-73. September 22, 1961
DECISION AND ORDER
On October 25, 1960, Trial Examiner Fannie M. Boyls issued her
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
did not engage in certain other unfair labor practices and recom-
mended that the complaint be dismissed with respect thereto. There-
after, the Respondent, the General Counsel, and the Charging Party,
Shop-Rite Foods, Inc., d/b/a Piggly Wiggly, hereafter called Piggly
133 NLRB No. 33.