Capital District Sheet Metal Roofing and Air Conditioning Contractors" Association, Inc.

National Labor Relations Board - Board Decisions

Sep 23, 1970

185 N.L.R.B. 702 (N.L.R.B. 1970)

702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Capital District Sheet Metal , Roofing and Air-Condi-
tioning Contractors ' Association , Inc., including B.
Sheber & Sons, Inc., Varden Bros. Roofing Co.,
Inc., McCreary Metals, Inc., Venditti Bros., Inc.,
Levi Case Co., Inc., Skyway Roofing Co ., Inc.,
Kaiser Boswell Co., Inc., Monahan & Loughlin
Inc., James Ackroyd & Sons, Inc., Charles R.
Joyce & Son, Inc., Joyce & Kramer , Inc., G.
E. Van Vorst Co., Inc., and E. W. Tompkins Co.,
Inc. and Local Union No. 83 of Sheet Metal Work-
ers' International Association
Nicholson Co., Inc. and Hudson Valley District Coun-
cil of Carpenters
Eastern New York Construction Employers, Inc. and
Asbestos Contractors Association and its Members
including Johns-Manville Sales Corp., Robert A
Keasbey Co., Armstrong Contracting & Supply
Corp., and Tri-City Insulation Co., Inc., and Local
No. 40, International Association of Heat and Frost
Insulators and Asbestos Workers
Basic Construction Co. and International Union of
Operating Engineers Local 545-D
Nicholson Co., Inc., and International Hod Carriers,
Building and Common Laborers Local Union 17
Kilby Bros., Inc. and International Hod Carriers,
Building and Common Laborers Local Union 17
Eastern New York Construction Employers, Inc. and
its Members including Basic Construction Co.,
Cooley Contracting Co., Inc. and Glenmont
Equipment Co., Inc. and Local 294, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America
Precision Metal Works, Inc. and Local Union No.
83 of Sheet Metal Workers' International
Association . 3-CA-2632, 3-CA-2647, 3-CA-2656,
3-CA-2676, 3-CA-2680, 3-CA-2681, 3-CA-
2778-2, 3-CA-2783-1, 3-CA-2783-2, 3-CA-
2783-3, 3-CA-2783-4, and 3-CA-2783-5
September 23, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On August 22, 1969, Trial Examiner Sidney D.
Goldberg issued his Decision in the above-entitled
proceeding, finding that Respondents had not engaged
in the unfair labor practices alleged in the complaint,
and recommending that the complaint be dismissed,
as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision and a supporting brief,
and the Respondents filed a brief in support of the
Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
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 here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts
the findings,' conclusions, and recommendations2 of
the Trial Examiner.
ORDER
Trojan Hardware Co., Inc. and Local Union No.
83 of Sheet Metal Worker's International
Association
Latham Sheet Metal Corp. and Local Union No.
83 of Sheet Metal Workers' International
Association
John P. Hand Heating & Air Conditioning Corp.
and Local Union No. 83 of Sheet Metal Workers'
International Association
McCreary Manufacturing Co., Inc. and Local Union
No. 83 of Sheet Metal Workers' International
Association
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
' In accord with the General Counsel's unopposed request, we disavow
the Trial Examiner's statement that Mr Henry Landau appeared for
the Charging Parties
' In our adoption of the Trial Examiner ' s findings , conclusions, and
recommendations we are, of course , deciding only those issues raised
by the facts , pleadings , and exceptions in this case We do not intend
by adoption of these findings and conclusions to pass upon the broader
issue of the legality of a lockout over issues not the subject of bargaining
or deadlock in negotiations to which the locking-out employer is, at
the time, a party Notwithstanding a contrary suggestion in the Trial
Examiner's Decision (fn 70), those issues are not before us for review
185 NLRB No 90
CAPITAL DISTRICT SHEET METAL 703
TRIAL EXAMINER'S DECISION
SIDNEY D GOLDBERG, Trial Examiner The central
question in this case is whether a large group of building
construction employers, bargaining in several units with
appropriate craft unions, acted unlawfully when they locked
out their employees in all the units, in support of a
bargaining position at issue in some , but not all , of those
units
The amended and consolidated complaint herein' alleges
that Eastern New York Construction Employers, Inc
(herein called Eastern New York), the principal association
of building construction employers in the Albany, New
York, area, two of its constituent organizations,' and 27
employer-members of these associations," violated Section
8(a)(5), (3), and (1) of the National Labor Relations Act, as
amended (herein called the Act), by locking out employees
during the course of bargaining for new contracts to begin
May 1, 1965 4 Respondents answered, denying the
commission of such violations, and the issues so raised
came on for trial before me in Albany, New York, on 38
days between February 12 and August 7, 1968. All parties
were represented, afforded an opportunity to adduce
evidence, cross-examine witnesses, and argue upon the facts
and the law. Briefs filed by the General Counsel and by
counsel for Respondents have been considered.
For the reasons hereinafter set forth in detail, I find that,
although Respondents acted in concert and locked out
employee-members of the charging unions, they did so
solely in support of their bargaining position during
negotiations and that, under relevant Board and court
decisions, their conduct did not violate the Act as alleged in
the complaint
Based upon the entire record herein,5 and the demeanor
of the witnesses while testifying, I make the following
FINDINGS OF FACT
I. THE EMPLOYERS INVOLVED
on behalf of their own members-as well as on behalf
of Eastern New York's members-are claimed by the General
Counsel to be essential to an understanding of the actions
of Respondents, Accordingly, much of the evidence in
the record concerns the activities of these other employers
and their representatives , with whom , it is argued, the
Respondents acted in concert in carrying on the activities
for which it is sought to make them responsible in this
case.
These other constituent associations of Eastern New York,
concerning whose activities proof was taken herein, are
Mechanical Contractors Association of the Capital District
(herein called Mechanical Association),' General Contrac-
tors Association of Eastern New York (herein called General
Contractors Association),' and Capital District Tile, Marble
Terrazzo and Slate Contractors Association (herein called
Terrazzo Association) 10
The complaint alleges that Eastern New York, its constitu-
ent organizations , Sheet Metal Association , Asbestos
Association, Mechanical Contractors Association, and
Terrazzo Association, and the 27 named contractors, are all
employers engaged in commerce within the meaning of the
Act. The answer admits the allegation as to 26 of the 27
individual employers" but denies it as to Latham Sheet
Metal Corp (herein called Latham) and as to the
constituent associations 12 With respect to Latham, the
record shows clearly that , during the fiscal years ending
September 30, 1964, and September 30, 1965, it received
revenues of more than $50,000 from persons engaged in
interstate commerce13 and that it is, therefore , engaged in
commerce within the meaning of the Act 14 With respect to
Eastern New York and its constituent associations, the
answer admits that they have negotiated collective-
bargaining agreements on behalf of their members and, as
stated above, that their members are engaged in commerce.
Since Section 2(2) of the Act defines the term "employer"
to include "any person acting as an agent of an employer,"
the denial that they are employers is frivolous and raises no
issue necessary to decide herein
While the named respondents remaining in this case
are the 27 individual employers and the three associations
to which they belong viz, Eastern New York, Sheet Metal
Association' and Asbestos Association,' there are several
other constituent associations of Eastern New York, repre-
senting employers in other bargaining units, whose activities
1 Issued December 21, 1967, on charges and amended charges filed
between May 3 and November 1, 1965
1 Capital District Sheet Metal , Roofing and Air Conditioning Contrac-
tors ' Association , inc (herein called Sheet Metal Association), and Asbes-
tos Contractors Association of Albany and Vicinity (herein called Asbestos
Association)
1 At the commencement of the trial there were 29 individual employer-
respondents , during its course , 3 were dropped and one was added
' All dates herein , not otherwise designated , are 1965
By order dated January 27 , 1969, corrections were made to the
transcript of testimony
Consisting of employers engaged in sheet metal work, principally
in connection with roofing and with heating or air-conditio ing duct
work
Consisting of employers engaged in heat-insulation work on piping,
machinery , and buildings
11. THE LABOR ORGANIZATIONS
Although the complaint herein shows that it was issued
on the basis of charges by locals of the Sheet Metal Workers,
Asbestos Workers, Laborers, Carpenters, Operating Engi-
neers, and Teamsters , " this case involves additional labor
' Consisting of employers engaged in plumbing work and in the installa-
tion of heating and air-conditioning machinery
' Consisting of employers engaged both as general contractors and
in masonry , concrete , and bricklaying work
° Consisting of employers engaged in marble , tile, and terrazzo work
One of these individual employers is Glenmont Equipment Co,
Inc , added during the trial and alleged to be integrated with Respondent
Cooley Contracting Co, inc Glenmont 's answer admitted commerce
and its status is discussed below
" Only Sheet Metal Association and Asbestos Association are named
as respondents
11 During the year ending September 30, 1964 , it received over $50,000
from General Electric Company and Ford Motor Company alone
" SiemonsMailing Servtce, 122 NLRB 81
" Local Union No 83 of Sheet Metal Workers ' International Association
(herein called Sheet Metal Workers , Local 83 ), Hudson Valley District
(cont'd)
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizations, dust as it involves employers not named as
respondents These additional labor organizations include
locals of Iron Workers, Plumbers, Laborers, Bricklayers,
and Terrazzo Workers 16 It is admitted herein that all
of the foregoing locals are labor organizations
III THE UNFAIR LABOR PRACTICES
A Background
Although the trial of this case was held on 38 days,
resulting in a transcript of 5,078 pages and 121 exhibits
totaling 839 pages, the facts herein are not seriously in
dispute."
1 The employer associations
Eastern New York is the principal employer association
for the building construction industry in the region termed
"east central New York"; i.e., the city of Albany and
a radius of about 50 miles which includes the cities of
Troy and Schenectady. Until the early 1950's it had been
known as the Albany Builders Exchange and the present
arrangement of employer associations in the area rests
in historical development rather than any logical organiza-
Council of Carpenters (herein called Hudson Valley Carpenters), Local
No 40, international Association of Heat and Frost Insulators and Asbes-
tos Workers (herein called Asbestos Workers, Local 40), International
Union of Operating Engineers Local 545-D (herein called Operating
Engineers Local 545-D), International Hod Carriers, Building and Com-
mon Laborers Local Union 17 (herein called Laborers Local 17), Local
294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (herein called Teamsters Local 294)
" Local Union No 12, Iron Workers District Council of Western
New York and Vicinity, AFL-CIO (herein called Iron Workers, Local
12), United Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada, Local 61
(herein called Plumbers, Local 61) and Local 7 (herein called Plumbers,
Local 7), international Hod Carriers, Building and Common Laborers
Union of America, AFL-CIO, Local No 452 (herein called Laborers,
Local 452), Bricklayers, Masons, Plasterers, Marble, Tile & Terrazzo
Workers, Local 6, Local 10, and Local 16 (herein called Bricklayers
Locals 6, 10, and 16, respectively), Tile, Marble and Terrazzo Division
of Bricklayers Locals 6,-10, and 16 (herein called Tile and Terrazzo
Workers Union), and Local 59 of the International Association of Marble,
Stone and Slate Polishers, Rubbers and Sawyers, Tile and Marble Setters
Helpers and Marble, Mossaic and Terrazzo Workers Helpers (herein
called Terrazzo Helpers Union)
i' Respondents ' brief states "The facts , as proven in the record are
generally not in dispute " Furthermore , although this statement continues
in
"There are a few sharp issues of fact which will be discussed later
m this brief," the only issues of fact referred to in the brief are (i)
whether the masons were on strike on May 3, and (ii) whether some
employees (not masons) were sent home because they could not perform
their work by reason of the failure of the masons to do the requisite
preliminary work These issues, as will be seen , need not be determined
Finally, although both the General Counsel and counsel for Respondents
undertook, at my request, to rile reply briefs to narrow and clarify
any issues of fact in the record-and Respondents ' brief, in referring
to this arrangement , states "Respondent is at a loss , as to what facts
are being relied on by the General Counsel to prove its case "-they
both notified me that no reply briefs would be filed From this I infer
that Respondent has no quarrel with the General Counsel's presentation
of the facts Accordingly , in setting forth the progress of negotiations
in the several groups that were bargaining , I shall avoid , as far as
possible, resolving the differences, if any, between the accounts given
by the employer and the union negotiators but shall confine myself
to an outline necessary to show the situation at the times critical herein
tional structure. Some of the traditional employer bargaining
groups have kept their identity for contractual purposes,
as the Sheet Metal Association, Asbestos Association, and
Mechanical Contractors Association Others have entered
into their collective-bargaining contracts through Eastern
New York. While the actual bargaining is conducted within
the traditional craft categories with the appropriate craft
unions, there has been employer exchange of information
through Eastern New York, just as the craft unions in
the area coordinate their policies through their Central'
and other labor councils.
The close coordination among the employers through
Eastern New York, for collective-bargaining purposes, is
reflected in the constitution and bylaws of that organization
This document provides a president, a vice president, and
a treasurer elected by the membership, but for the appoint-
ment of the secretary and managing director (who may
be the same person) by the Board of Directors, which
is given general management powers over the organization
The Board of Directors, in turn, consists of the officers
of the association and of individual members chosen on
the basis of their representation of 13 specified "trade
groups," which are similar to the general contractors and
the several separate crafts customarily involved in building
construction
In addition to this organizational pattern, the minutes
of the January 19, 1965, meeting of the Board of Directors
of Eastern New York reflects the creation of a "general
labor committee on which all negotiating committees
will be represented, whether or not they are negotiating
this year " The record of the meeting states that the purpose
of this committee "is to establish proper coordination during
negotiations and also to arrive at certain guidelines for
the various committees."
From this organizational structure, and from the activities
of the several craft groups of employers curing the negotia-
tions in 1965,1e it clearly appears that, whether the Sheet
Metal Association, the Asbestos Association, and the other
associations were or were not technically members of Eastern
New York, directly or through the membership of their
members, the employers and associations involved in the
negotiations of 1965 did in fact act in concert, and I
so find. Accordingly, the General Counsel was justified
in adducing evidence concerning their relevant activities,
regardless of whether they were named as respondents
herein
2 The status of the collective-bargaining contracts
In the spring of 1965, there was, as noted, an assortment
of contractual arrangements for collective bargaining in
Eastern New York's area- some of the contracts having
been executed by Eastern New York on behalf of its mem-
bers, some having been executed by the constituent craft
associations, and some having been executed by individual
employers The contracts covering a large majority of the
workmen in the area were scheduled to expire April 30,
18 Notably the creation, lust before the lockout, of the Steering Commit-
tee on which all crafts were represented
CAPITAL DISTRICT SHEET METAL
1965 Because of the number and variety of the contractual
arrangements, it will facilitate comprehension and conserve
time and space to set forth, in tabular form, the parties
to and the expiration dates of the relevant contracts This
table, marked "Appendix A," is deemed inserted at this
point
It is to be noted that several of these contracts continued
in effect well beyond April 30, including the contract
between Eastern New York and Teamsters Local 294, the
contracts between Eastern New York and the Terrazzo
Workers and the Terrazzo Helpers, and several contracts
involving individual respondents herein
During the early months of 1965, appropriate letters
were exchanged to terminate most of the expiring contracts
and, on March 9, Eastern New York, on behalf of itself
and its constituent associations, including Sheet Metal Asso-
ciation, Asbestos Association, and Mechanical Contractors
Association, gave notice of such termination, pursuant to
Section 8(d)(3) of the Act, to the Federal and State mediation
services i'
B. Negotiations
1. Preliminary The shorter workday
It is quite clear that the major contributing cause-if
not, indeed, the only basic cause-of the work stoppage
involved herein was the effort, led by the masons' union,
to obtain a shorter working day. The principal witnesses
concerning the masons' negotiations, Sereno Boccar, the
Albany local's business agent and chariman of the negotiat-
ing committee for all the locals in the area, and John
McManus, chairman of Eastern New York's negotiating
committee, both testified that this effort had been visible
for the past 10 years. Boccar ascribed it to a combination
of causes a change in building technique involving the
use of larger, heavier, building blocks, coupled with the
advancing age of the average working bricklayer McManus
contended that it was a bargaining ploy designed to raise
actual wages since an eighth hour of bricklaying work
in each day, he insisted, would still be required to maintain
satisfactory progress on the construction jobs-but it would
be an eighth hour paid for at the double wage rate customary
for overtime in the Albany area.
Whether Boccar or McManus more accurately described
the basis for the masons' demand, there was no contradiction
of Boccar's testimony that the rank-and-file masons-at least
those in the Albany local-had formally instructed their
negotiating representatives to present and adhere to this
demand in the 1965 contract negotiations Moreover, the
idea was undoubtedly attractive to the workmen in other
crafts, since most of the union negotiators included that
demand in their original proposals
On the part of the employers, there was no doubt that
the movement for a shorter workday occupied a prominent
place in their concern about the upcoming negotiations.
Both McManus and Boccar testified, as stated, that there
had been discussion on the subject for almost 10 years
" The notice listed, erroneously, the contract between Eastern New
York and Teamsters Local 294, which was not about to terminate
705
in the masons' negotiations and Wilhelmus van Eekeren,
the secretary and managing director of Eastern New York,
testified that it was also one of the demands leading to
a strike by the lathers' unions in 1963
In February 1965, a group of business agents representing
several building trade unions requested and had a meeting
with the president, two past presidents, the vice president,
and the managing director of Eastern New York The
union representatives inquired whether the officials of East-
ern New York would discuss a shorter workweek in the
negotiations. The spokesman for the employers said that
they would discuss any subject, but he expressed their
strong opposition to any shortening of the workweek. Shortly
thereafter, posters expressing support for a 7-hour day
began appearing at various construction sites
Late in February, the General Labor Committee of East-
ern New York, consisting of the chairmen of the several
negotiating committees-whether the collective-bargaining
contracts which they negotiated were in the name of Eastern
New York or one of its constituent associations and whether
or not they were terminating at the end of April-met
and recommended that the Board of Directors of Eastern
New York make known its opposition to any shortening
of the workweek. It also recommended that the Board
of Directors adopt a policy whereby all consturction work
would be shut down if any of the crafts should fail to
sign a new contract at the expiration of the old one
The Board of Directors, at a meeting a day or so thereafter,
adopted this recommendation of the General Labor Commit-
tee but attached a grace period of 2 weeks before invoking
a general shutdown. This meeting was, in turn, followed
by a general membership meeting on March 2 at which
overwhelming opposition to any shortening of the workweek
was expressed and a resolution was adopted granting the
Board of Directors authority to call for a shutdown "in
case the economical operation of the jobs would be jeopard-
ized by any or all unions, after the expiration date of
the contracts . " and if the Board of Directors "felt
that an impasse had been reached in negotiations."
After this meeting, Managing Director van Eekeren dis-
cussed the subject of the shorter workweek privately with
several union representatives and invited about 30 of them
to a meeting on March 30 with the officials of Eastern
New York at the Thruway Motel in Albany Van Eekeren
spoke to the group, stating that it had begun to appear
that some of the unions were going to make the shortening
of the workday an essential element in any new contract,
that the membership of Eastern New York had expressed
its strong opposition and that he thought "it would be
a great shame" if construction workers were to lose money
over this controversy20 when there was "so much work"
available in the area He then proposed that all expiring
contracts be extended for 2 years at an increase in wage
'° Eastern New York periodically issues a bulletin to its membership
to keep them informed on matters of interest to them The one issued
under the date March 31, 1965, featured, with the title "A Momentous
Decision-Lockouts Declared Legal," a brief summary of the Decision
of the Supreme Court in American Ship Building Co v NLRB,380
U S 300 (issued March 29, 1965)
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rates" but -"ithout any other changes involving money
except for the establishment of an "industry fund" for
use by the employers. He also proposed that the parties
to the extended contracts meet in August, when there
would be no pressure by "deadlines," and discuss a further
extension of the contracts for a 5-year period during which,
possibly, the workweek might be gradually shortened. This
proposal became known as the "Thruway Proposal."22
A few days later the unions, in a telegram signed by
the president of the Building and Construction Trades
Council, stated that they would "negotiate all proposals
on an individual basis." All subsequent negotiations were
conducted, accordingly through the separate negotiating
committees but, as noted, the employers maintained liaison
among the several committees through the General Labor
Committee of Eastern New York and the unions did the
same through the Building and Construction Trades Coun-
cil.
2.7he masons
The established custom in the Albany area is for general
contractors to perform their own masonry, bricklaying,
and concrete work. The General Contractors Association
of Eastern New York, therefore, rather than any association
of masonry contractors, is the "trade group" represented
on the Board of Directors, the general contractors designate
the employers' negotiating committee for this work, and
the single contract with the several masons' unions in
the area is signed in the name of Eastern New York.
The chairman of the employers' bargaining committee, as
stated, was John McManus, a member of a firm of general
contractors, and he had five other employers on his commit-
tee Sereno Boccar, chairman of the union committee, had
other members of the Albany local, as well as delegations
from the other locals, on his committee so that the union
negotiating team consisted of 15 or more men
The first meeting between union and employer representa-
tives was on April 7 when Boccar, alone, met with five
or six members of the employers' committee The purpose
of the meeting was simply to exchange proposals but,
before that could be done, according to Boccar,23 he was
asked by McManus whether the union proposals contained
a shorter workday; that, when Boccar said that they did,
" Van Eekeren testified that , although he did not mention a figure,
everyone understood that the "going" rate of increase, 20 cents per
hour each year, was intended
" The gradual shortening of the workweek to 35 hours over a 5-
year period was known as the "Koreman Plan," for the business agent
of the Albany electricians' union who had proposed it The preliminary
2-year period before commencement of reduction in hours was added
by van Eekeren, who claimed that maintenance of the status quo was
necessary to permit the orderly completion of construction already bid
or in progress
" Comparison of the testimony of Boccar, McManus, and van Eekeren
concerning the negotiations shows some divergencies in details, rising
in some instances to conflicts concerning whether particular statements
were made at a particular meeting or some other , whether certain remarks
were made by one or another representative of either side, and, in
fact, whether certain statements were made at all In many instances,
resolution of these divergencies is unnecessary and the account of the
negotiations is set forth in general terms as substantially uncontradicted
Where necessary , of course , important conflicts are resolved
McManus exclaimed: "That's it-we can't talk further
because they haven't authorized us to" and refused to
deliver the employers' proposals McManus' testimony was
at variance with Boccar's• he indicated that several union
representatives were present at this meeting; that he asked
them whether they would discuss the Thruway Proposal;
that, when they said they weren't familiar with it, he
explained it, and that he suggested they meet in a week
to discuss that proposal or to exchange specific proposals
McManus conceded, however, that both parties had written
proposals in their possession which they did not exchange
and he was somewhat uncertain whether some of the things
he described occurred at the first or second meeting Based
upon these factors, and upon the fact that Boccar's testimony
shows that he was familiar with the Thruway Proposal
'because he was present at the meeting at the Thruway
Motel and McManus' 'testimony shows that he was not,
I accept Boccar's version of this meeting.
The committees, with most members present on both
sides, met again on April 14, and exchanged their written
proposals.24 After Boccar read out the unions' proposals,
according to McManus, they spent 2 to 3 hours discussing
the problems involved in the shorter workday; Boccar
explaining why it was necessary and that the union represent-
atives were under orders from the membership to obtain
it and, they agree, McManus stating at great length the
reasons for the employers' insistence on a continuation
of the 8-hour day for at least 2 years They both testified
that McManus said he would not carry their discussions
beyond the first item of the proposals in dispute-the length
of the workday-and that he would not, as was their past
custom, pass on to negotiation of other elements of the
contract and return to the difficult problems later In fact,
McManus testified, he suggested a 9-hour day, but the
unions rejected it Boccar testified that McManus said
that this problem of hours of work was his special interest
and that, for this reason, he had asked for the appointment
as chairman of the employers' negotiating committee Boccar
further testified that McManus stated that, unless all crafts
agreed on contract terms before May 1, there would be
no work for anyone after that date. Although McManus
denied having threatened a shutdown, in view of his admis-
sion that he did say that the employers had a right to
shut down and would probably follow the recommendations
of Eastern New York, which was already known to advocate
a general shutdown, I accept Boccar's testimony on this
point.
There was another meeting on April 19 but McManus
confirmed Boccar's testimony that, after he had restated
the unions' reasons for reducing the length of the workday,
the employers' representatives refused to discuss any other
subject.
34 The proposals, naturally , contained conflicting provisions The unions'
would reduce the hours of work from 8 to 7, while the employers'
would maintain the 8-hour day, the unions ' would retain the double
rate provision for overtime, while the employers' would reduce it to
time and a half, the unions ' would continue to provide for reporting
pay and would double the rate of travel expense, while the employers'
would abolish both, the unions requested a raise in the hourly rate
from the $470 in the expiring contract to $545 the first year and
$5 75 the second year of the new contract, but the employers offered
no raise at all The employers also proposed the industry fund
CAPITAL DISTRICT SHEET METAL
The meeting on Monday, April 26, started at 10:45
a m with proposals on both sides for different package
deals but the unions' proposal continued to provide for
a shortening of the workday-now modified, according to
Boccar, by the addition of a provision for maintenance
of the 8-hour day for 6 months-and the employers' proposal
continued to provide for the maintenance of the 8-hour
day for 2 years. McManus did concede, Boccar testified,
that, if and when the contracts of a majority of the other
trades provided for work less than 8 hours per day, the
employers would "discuss" it but McManus predicted that
the situation would not arise for 5 or 10 years. This
meeting continued until 3.30 in the afternoon, the employers
asking the unions to request the Thruway Proposal and
the union representatives repeating that they were bound
by the instructions from their membership to provide for
a shortening of the workday Both McManus and van
Eekeren testified that they told the union representatives
that, if the demand for the shorter workday were dropped,
both negotiations and employment could be continued for
30 days, and that they would agree that the terms of
any contract subsequently reached would be retroactive
to May I In view of this testimony, I accept Boccar's
statement that both McManus and van Eekeren reiterated
the employers' intention to lock out the employees upon
the expiration of the contracts.
When this meeting terminated, McManus and van Eeker-
en went to Eastern New York's offices, where a meeting
of the General Labor Committee was in session, and the
union representatives went to the Little Bavarian Tavern
for dinner.
McManus testified that when he entered the meeting
of the General Labor Committee, he gave his report on
the status of negotiations with the masons; that he stated
that the unions were holding to their demand for a shorten-
ing of the workday, and that he felt they were ready
to strike for it. The chairman of the employers' committee
negotiating with the sheet metal workers' union , Francis
G. Windelspecht, and the chairman of the committee negoti-
ating with the lathers' union, John Reihmer, both reported
that those unions were also holding firm on their demands
for a 7-hour day. There was some discussion, McManus
testified, about the possibility of continuing to operate
beyond the termination date of the contracts but Frank
Zeronda, the president of Eastern New York, presiding
over the meeting, voiced the difficulties of continuing con-
struction jobs without signed agreements and without assur-
ance that the men would report for work. At this point,
according to McManus, he addressed the meeting, pointing
out that the membership of Eastern New York had voted
to maintain the 8-hour day and to require that new agree-
ments be signed before the old ones expired. McManus
then asked President Zeronda for a written statement of
the organization's policy so that he could use it to impress
its firmness on the representatives of the masons' unions.
Zeronda and van Eekeren then prepared a statement
and had it typed on a stencil. The statement reads as
follows:
TO ALL NEGOTIATING COMMITTEES
This is to inform you that the general membership
of Eastern New York Construction Employers has
707
unanimously voted to oppose any shorter workday
or work week.
The undersigned Chairmen have declared themselves
in full accord and will absolutely refuse to sign any
agreement which shortens either the workday or work
week.
SIGNED BY CHAIRMEN OF THE EMPLOYERS'
COMMITTEES
and spaces were provided for the signatures of the chairmen
of each of the negotiating committees, regardless of whether
they were in negotiations. The listed chairmen, almost
all of whom were present, then signed the stencil; it was
run off on the office mimeograph machine, and copies
of the signed statement were distributed to the several
chairmen McManus took his copy and declared his intention
of showing it to Boccar and the other members of the
masons unions' committee Van Eekeren told McManus
that these men could be found at the Little Bavarian
Tavern and McManus went there Finding Boccar and
three of his colleagues still there, McManus showed them
the statement, explaining the official status of the others
who had signed it zs
The union representatives, according to McManus, looked
at the list of signers and said that, with a few exceptions
like Lanzetta, chairman of the tilesetting contractors' com-
mittee who also dealt with the masons' union , they didn't
know the men and were not interested in the other crafts.
They also said that they were negotiating for an agreement
that would satisfy their membership and that they were
under orders to shorten the workday to 7 hours. McManus
then asked James P. Murphy, another committee member
from the Albany masons' union , whether the union would
strike for a 7-hour day or if no agreement were reached
by April 30 and Murphy refused to answer. He also testified
that one of the union committeemen asked whether the
employers intended to lock out the masons and that he
replied that his committee's object was to obtain an agree-
ment but their actions as employers were dependent upon
the recommendations of Eastern New York. McManus
also testified to his repetition of the statement that, if
the unions would drop their effort to shorten the workday,
negotiations and construction work could continue past
the termination date of the contract. Murphy confirmed
McManus' testimony, but added that McManus unequivo-
cally stated that, unless all trades signed contracts, all
the trades would be locked out.
Another meeting was held April 29 with practically
all members of both committees present McManus testified
that he asked the union committeemen whether they had
discussed the employers' opposition to a 7-hour day with
their members, that they told him they had done so informal-
ly but that their members' position remained unchanged
He also testified that the unions then proposed a gradual
reduction in the workday: an 8-hour day for 6 months;
a 7-1/2-hour day for 6 months and a 7-hour day thereafter;
and that the employers refused At this point McManus
" Boccar testified that this incident followed the negotiation meeting
of April 19 In view, however, of the testimony of McManus, van
Eekeren, and Murphy, it appears that Boccar was mistaken and I find
that this occurred on April 26
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
repeated, according to Boccar, that the employers had
a right to lock out the men if all trades had not signed
by May 1 The employers then suggested that the unions
propose a contract providing for an 8-hour day for 2
years, a wage increase of 10 cents per hour each year,
and establishment of an industry fund, pointing out that
this was not very different from the Thruway Proposal,
particularly in its inclusion of a standstill on the 8-hour
day for 2 years, but the unions rejected it. Either McManus
or van Eekeren repeated the employers' offer to keep the
construction jobs going and continue negotiations for 30
days if the unions would drop their insistence on a 7-
hour day McManus testified that, when he asked Murphy
what the masons would do if no agreement was reached,
Murphy said the men would not work without a contract 26
Boccar testified that "it was more or less the same story
all over again" and that, early in the afternoon, McManus
gathered up his papers and said: "That's it," whereupon
Boccar told the employers' committee that they could reach
him over the weekend if they wished to meet further
but that McManus told him "not to bother," that the
jobs would be shut down.
The employer and union committees did not meet again
prior to the lockout."
3 Plumbers
The plumbing and heating contractors of Albany and
Troy had separate contractual arrangements with Plumbers
Local 7 of Albany and Plumbers Local 61 of Troy, respec-
tively. In Albany they bargained through the Mechanical
Contractors Association but in Troy they bargained as
an informal group of contractors and each of them signed
individual copies of the contract agreed upon.
a. Albany
The negotiations between the Mechanical Contractors
Association and Plumbers Local 7 began2A with a brief
" Murphy testified, in response to leading (but not improper) questions,
that he never said that the union would go on strike or "bring the
industry down" and Boccar also testified that the unions never threatened
to strike I find, however, that these statements constitute a negative
pregnant with respect to McManus ' testimony , and I accept the statement
of McManus on this point
" William H Shaw, project manager of Basic Construction Co, general
contractor at the State University job, testified that on April 29 Boccar
came to see him and said negotiations with Eastern New York "were
not progressing too well" and it looked like the contract was going
to expire, that Boccar asked that Basic sign a separate contract with
the masons ' union but he refused to do so, whereupon Boccar said
that, if there were no contract , there would be no men on the job
after May 1
" The Mechanical Contractors Association had a part -time employee
whose function was to act as recording secretary for the association
in meetings with representatives of Local 7 The notes which he kept
were received in evidence and were not contradicted by any other witness
The testimony of Elbert W Tompkins , president of the contractors
association and chairman of its negotiating committee , while fragmentary,
was supplemented by his investigative affidavit (received as past recollec-
tion recorded ) and does not conflict, in any substantial degree, with
that of Raymond Maguire , president of Local 7, and that of Bernard
Statile, its secretary Some testimony on this subject was also given
by van Eekeren Accordingly, the account of these negotiations is based
upon a consolidation of the evidence given by all of the foregoing
discussion following the completion of a grievance committee
meeting on March 13. Tompkins asked the union representa-
tives29 what they were "looking for in May." Although
protesting that the meeting was not a negotiating meeting,
the union representatives stated informally that they would
be asking for a 7-hour day, a wage increase, and some
additional holidays. The contractors immediately said-
"Don't even talk about [it] because we're not going to
go into seven hours."
The representatives of both sides met again on March
23, when the contractors presented their written proposals
for a new contract These proposals, as characterized by
the union committeemen, would have reduced compensation
and benefits in every area and would have provided an
"industry fund" under the exclusive control of the contrac-
tors The representatives discussed the contractors' proposals
and, as the minutes show, the union members referred
to their desire for a 7-hour day, suggesting several methods
by which that result might be gradually reached, and their
concern lest there be a lockout by the employers 10 During
this meeting, Tompkins asked the union representatives
whether the other unions would try to settle as a group
and was told that the plumbers' International would not
permit them to join in a group settlement. The union
representatives rejected the contractors' proposals but it
was agreed that the committees would meet again in a
week and that the union would then present written propos-
als.
The committees met again at the end of March and
the union submitted its proposals. As a preliminary matter,
the union requested assurance that, if it signed a contract,
its men would be permitted to work without interruption,
but the contractors refused to give such assurance. The
union asked that the workday be reduced to 7 hours;
the contractors answered that it was "out of the question"
and refused to discuss it Nevertheless most of this meeting,
which lasted several hours, was taken up with statements
by the union committeemen in justification of a shortening
of the workday. The contractors also rejected each of
the other union proposals: higher wages, increased traveling
expenses, paid holidays, and extension of the cooling-off
period at the end of the new contract from 15 to 30
days.
The committees next met on April 20 and, as the minutes
show, immediately launched into a discussion of whether
the men would be permitted to work if the parties signed
a contract. Tompkins first conceded that, in accordance
with the 15-day cooling-off provision in the expiring con-
tract, the employers would be required to wait that period
of time before they could lock out the men. He followed
his concession, however, by informing the union men that
Eastern New York intended to picket the jobs and, when
the union representatives said that a picket line by the
39 The grievance committee and the negotiating committee of the
union have the same members
31 In addition to the strong opposition to a shorter workday expressed
by the membership of Eastern New York at the meeting on March
2, with its implicit threat of a lockout, Reilly, president of Local 7,
made reference at the negotiating meeting to the lockout that had occurred
4 years earlier and Tompkins ' affidavit refers to a shutdown by his
shop during those negotiations
CAPITAL DISTRICT SHEET METAL 709
employers would have no status, Tompkins said that if
Eastern New York were to "shut down the industry we
close down " There was further discussion on the several
items in dispute but the contractors were adamant in their
refusal to shorten the workday
On April 28 the committees again met, with van Eekeren
present to explain the industry fund Most of the discussion
was on the length of the workday and the problems of
working if Eastern New York shut down the industry
Van Eekeren noted that the sheet metal workers were
insisting on a 7-hour day and stated that Eastern New
York might picket any jobs that did not shut down Tomp-
kins showed the union committeemen the joint statement
of the employer negotiating committee chairmen, signed
April 26, declaring their mutual agreement to refuse to
shorten the workweek The contractors offered to settle
on an 8-hour day with hourly increases of 15 cents per
hour each year and the union countered by asking for
25-cent increases each year. Van Eekeren suggested that
they split the difference and agree on 20-cent increases
but the meeting adjourned with the suggestion that they
meet again on May 1.
It was May 3 when the committees met again and
the union agreed to an 8-hour day They were discussing
union membership approval for a 20-cent-an-hour settlement
when McManus and Zeronda came into the meeting and
told the committeemen Eastern New York had voted to
shut down if all trades had not reached agreement. Accord-
ingly, he said, at 11 a.m. Eastern New York had sent
out a telegram instructing its members to close down their
jobs at the end of that day The union committee nevertheless
undertook to call the members into a meeting later that
week to consider the 20-cent offer and the contractors
stated that the men "could work where they could work",
that is, where jobs were not shut down or picketed by
Eastern New York.
b. Troy
On February 24, Harry Carleton, president of Trojan
Hardware Company and the leading member of the informal
group of mechanical contractors of Troy, wrote a letter
to Plumbers Local 61, notifying it of the termination of
the contract on April 30, and stating that "per mutual
agreement" the first negotiating meeting would be held
March 16. Also by mutual agreement with the union,
Carleton sent copies of this letter to each of the Troy
contractors with which the union had a contract "
At the first meeting, the union presented its demands:
a 40-hour week with no raise in wage rates from May
1 to December 31, a 37-1/2-hour week with a 29-cent
wage rate increase from January 1, 1966, to August 31,
1966; and a 35-hour week with a 31-cent wage rate increase
from September 1, 1966, to April 30, 1967. In addition,
the union requested increases in welfare and pension pay-
ments. At the trial, Carleton identified the union's proposals
but did not testify any further concerning the course of
negotiations Business Agent Donovan of the union, howev-
" Successive letters of notification sent by Carleton show that subsequent
meetings were held on March 30, April 20 and 27, and May 1.
er, testified that, when the union presented its written
proposals, the contractors took them without comment
and left the meeting. At the next meeting the first matter
proposed for discussion was the 7-hour day but Carleton
said there would be "no discussion of the seven-hour day"
so they moved on to a union request on a safety matter.
After a discussion of about 15 to 20 minutes, the contractors
refused the request and terminated the meeting. At each
meeting, Donovan testified, the union representatives raised
the question of the 7-hour day and each time the contractors
refused to discuss it. The union requested an increase
in the wage rate in place of a shortening of the workday
but the contractors refused to offer any wage increase
whatsoever At the last of these meetings, on May 1,
both sides agreed that the union would not strike and
that work would continue during further negotiations, with
any agreement subsequently reached being made retroactive
to May 1
On May 3, however, Carleton called Donovan at the
union hall and informed him that he had received a telegram
from Eastern New York and that all jobs would have
to be closed down.
4 Sheet metal workers
Testimony concerning the negotiations between Respond-
ent Sheet Metal Association and Sheet Metal Workers
Local 83 was given by John McCarthy, president and
business manager of the Union at the time, and by Leonard
Levine, the Association's president, Donald A. McCreary,
its secretary, and Francis Windelspecht, its treasurer and
chairman of its negotiating committee. Managing Director
van Eekeren, of Eastern New York, who was the Associa-
tion's labor consultant and who acted as its recording
secretary, also testified concerning the negotiations. There
are no serious conflicts in all of this testimony, or with
the documentary proof submitted on this subject, and the
following account of the negotiations is based upon a com-
pendium thereof.
Sometime in March the Union delivered its proposals,
in the form of a complete contract, to the association
president. The proposed contract provided for a working
day of 7 hours and a 5-day workweek, continuation of
double pay for overtime, clarification of travel pay, and
a wage rate increase. The Association held a meeting to
discuss these proposals, at which van Eekeren was present,
and its members decided that they would not accept a
shortening of the workday. A day or two after this meeting,
van Eekeren visited McCarthy at the Union's office and
they discussed the recent meeting of building trades business
agents, which McCarthy had missed, at the Thruway Motel.
Van Eekeren said that it was "a shame" that the business
agents who were there did not accept his proposal and
that, if the unions persisted in their demands for a shorter
workweek, it could result in a lockout lasting up to 6
months When McCarthy protested that such a lockout
would be illegal, van Eekeren merely answered that it
had been done in other cases and could be done here.
Negotiation meetings between the Association and the
Union were held April 19, 28, and 30; minutes of the
meetings, taken by van Eekeren and approved at subsequent
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meetings, were introduced into evidence, there is not sub-
stantial dispute between the written minutes and the witness-
es' accounts of the proceedings.
At the first meeting, about a week after van Eekeren's
conference with McCarthy, Windelspecht told the Union's
representatives that the employers would negotiate only"
on the basis of an 8-hour day and a 40-hour week but
the union representatives said they were under instructions
from their membership to adhere to the demand for a
35-hour week McCreary testified that the employers told
the Union that no other demands of the Union could
be discussed "until the 7-hour day was resolved"," Levine
testified that a member of the employers' negotiating com-
mittee told the Union that, if the Union would set aside
its demand for a shorter workday, discussion could be
had on other provisions of the proposed contract and
that, if other trades obtained a shorter workday, the employ-
ers "would negotiate" concerning it.
Between the meetings of April 19 and 28, the Union
received the Association's proposals for changes in the
existing contract The employers made no offer of a wage
increase, they proposed to reduce overtime pay from double
to one and a half, to reduce travel pay, and to establish
an industry fund under their exclusive control.
The minutes of the April 28 meeting show that the
union representatives rejected the association proposal and
repeated that their membership insisted on a 7-hour day
Windelspecht repeated the employers' determination to
negotiate only on the basis of an 8-hour day and showed
the union representatives the document, prepared by McMa-
nus on April 26 and signed by the chairmen of all the
employer negotiating committees, pledging adherence to
the 8-hour day. According to McCarthy, when the employers
were asked to talk about a shorter workweek, Windelspecht
said that they would "talk" about it indefinitely but that
they would not do any more than talk about it. The
union representatives thereupon stated that there was noth-
ing they could do to change the submitted proposal since
it had been adopted by the union membership and they
returned to their headquarters to discuss the matter among
themselves.
The meeting of April 30 was conducted by a State
mediator. After both sides again affirmed their original
positions on the length of the workweek, a union representa-
tive asked the employers whether they had the "courage"
to get off the 40-hour week-even to a 38-hour week. This
precipitated a heated exchange and the union committee
left the room. When they returned, Windelspecht said that
an impasse had been reached and that there was no point
in further discussion. The union representatives said they
were willing to continue working and continue negotiating
but Windelspecht stated that, in conformity with the provi-
" Windelspecht, whose testimony consisted almost entirely of his
investigatory affidavit raised a question about whether the word appearing
therein in this connection was "only" I find that it was used in the
affidavit and that he used it in stating the employers' position to the
Union Moreover, the minutes of this meeting state that "the Employers
are willing to further negotiate on the proposed contract only on an
eight-hour day basis "
" The only other discussion was for the purpose of clarifying the
Union's proposals on travel pay and temporary heat
lion in the contract that it "shall continue in force and
effect until conferences relating thereto have been terminat-
ed," he was declaring such conferences terminated.
5 Asbestos workers
Although they were gone into in great detail in the
record, there is no dispute on any important aspect of
the negotiations between the Asbestos Contractors Associa-
tion and the Asbestos Workers Union.
There were only four insulating contractors in the Associa-
tion; they were all represented on the negotiating committee,
and Bernard Mullen, its president, was chairman of that
committee The negotiating committee of the Union consist-
ed of its then president, Charles W Hamilton, its business
agent, Edward W. Rossworm, and two other members
There were six meetingsJ4 between February 24 and the
termination of the contract on April 30 In accordance
with established custom, notes were taken at the meetings,
initialed by the participants before adjournment, and formal
minutes, prepared from the notes, were discussed and
approved at the following meeting. At their first negotiating
meeting, both the Association and the Union presented
detailed, written proposals and these, as well as the minutes,
are in evidence. Although Mullen testified at great length,
and President Hamilton and Business Agent Rossworm
of the Union also testified fully concerning the negotiations,
all of the evidence, written and oral, raises no serious
question concerning the major facts The following summa-
ry, therefore, is based upon a distillation of the evidence
described
At the first meeting, as stated, both sides presented
written proposals and each side answered questions concern-
ing the meaning or impact of each item it proposed. The
Union's proposals included lengthening the contract term
from 1 to 2 years, a wage rate increase of 30 cents the
first year and 25 cents the second, six paid holidays, an
increase of $1.50 per day in the more remote zones of
the Union's geographical jurisdiction, provision for a 6-
hour day if one-fifth of its members should become unem-
ployed, reduction of the workday to 7 hours if the electri-
cians, masons, or carpenters should shorten their workday,
and additional provisions concerning travel mileage. The
contractors, on their part, also proposed a 2-year contract,
abolition of the contract provision for time off to vote
in general elections, a management prerogative clause, 9
hours of pay for 8 hours of work on the "second shift,"
i.e., night work, and revisions downward of both travel
pay and zone differentials
On March 19, at the second meeting, the committees
reached quick agreement on a 2-year term for the contract
and on a provision requiring the employers to post bonds
for payment of wages due The contractors abandoned
their proposed management clause and their request that
the Union employ a paid business agent; they insisted,
however, on downward revision of travel pay and they
completely rejected the Union's proposal for a 6-hour day
" February 24, March 19, and April 9, 21, 26, and 29 There was
also some evidence that there was a meeting on March 12 but this
date may have been confused with March 19
CAPITAL DISTRICT SHEET METAL
whenever employment dropped below 80 percent as totally
unworkable and insisted on setting that matter aside. They
also rejected the idea of paid holidays, although the Union
reduced its request to two and, contending that the Union's
request for wage rate increases of 30 and 25 cents was
really a request for an increase of 43 and 60 cents by
reason of other "money" requests, they suggested a detailed
discussion of such requests. They then made their first
offer of a wage rate increase: 10 cents in each of the
2 years of the contract There was considerable discussion
concerning the Union's proposal for a shorter workday
if it were adopted by the named trades Since the contractors
questioned tying the working hours of the insulators to
electricians and carpenters , and pointed out that insulation
work was dependent, not on these trades, but on the plumb-
ers and sheet metal workers upon whose completed installa-
tions the insulators customarily worked. The contractors
also pointed out that there was such a notable scarcity
of working manpower in the craft that residents of Canada
were coming in to help with the work, and they firmly
opposed shortening the workday Accordingly, they moved
on to other issues
Between that meeting and the following one on April
9, the employers' committee met privately with Rossworm
and made a proposal on the reduction of the workday
which, they felt, would relieve the situation Although
Mullen described the contractors' proposal as the result
of "an inspiration," he also testified that it was practically
the same as the proposal originally advanced by the Union,
the sole difference being that the Union proposed that
the workday be reduced to 7 hours if the workday of
the electricians, masons, or carpenters were reduced, whereas
the contractors proposed that it be conditioned upon reduc-
tion of the workday of the "major trades" with which
they were associated, i.e., the plumbers."
Rossworm requested that the contractors put their under-
taking in writing but this request was refused on the ground,
according to Mullen, that he feared the document would
be circulated among the negotiators in the other crafts.
Rossworm promised to take up the proposal with the
executive board of the Union 36
The April 9 meeting opened with a discussion concerning
a recent Board Decision on the propriety of certain hiring
hall practices and then developed into a controversy over
the extent of the authority of the negotiating teams The
contractors pointed out that their committee was empowered
" Mullen also made reference to the electricians but neither he nor
the record discloses how the work of the heat and frost insulators
was related to that of the electricians
11 It is clear that the contractors made the question of shortening
the workday dependent upon whether the workday of other trades was
shortened Whether the proposal was that , if the other trades (whichever
they were) agreed upon a shorter workday, the Asbestos Contractors
would automatically adopt it, or whether their proposal was limited
to a promise that they would negotiate concerning it, is not clear Moreover,
whether the request of the Union, claimed to have been refused by
the contractors , was that the understanding be evidenced at once by
a short , written document , or whether it was that this understanding
be included as a provision of the collective-bargaining contract when
agreement should have been reached, is also not clear nor is it clear whether
the contractors ever proposed that such provision be written into the
contract In the view I take of this case, however it is not necessary to make
a finding on any of these questions
711
not only to negotiate but that it could execute a contract
based upon agreement reached" but the union committee
conceded that it was required to submit everything to
the general membership
The committees then made an effort to separate categories
those which involved money and those which did not
According to Mullen, although the Union asked that the
electricians be eliminated from the trades whose workday
would affect the length of their own workday, the question
of the 7-hour day was not even discussed because they
were so occupied with consideration of "money" issues
The meeting of April 21 produced little progress, although
Union President Hamilton testified that all proposals still
in issue were discussed The contractors raised their wage
rate offer from 10 to 12-1/2 cents each year, while the
Union held firmly to its demand for 30 and 25 cents,
the Union reduced its demand for paid holidays to a
single day and 2 hours off for voting on Election Day,
and its wage differential in the outlying zones to $1
Although Mullen testified that the contractors were expect-
ing to hear the Union's views on the contractors' proposal
to Business Agent Rossworm concerning the conditional
reduction of the workday, nothing was said on that particu-
lar matter The only discussion of the 7-hour day, according
to Rossworm, was a discussion of what the other trades
were doing about it and a statement by the contractors
that the other trades had not decided what to do about
it and that they, therefore, could not make any concessions
with respect to it.
Both the minutes of the April 26 meeting and the testimo-
ny concerning it show that it was mostly devoted to intensive
bargaining on the money issues. The union committee report-
ed that the membership adhered to its demand for wage
rate increases of 30 and 25 cents for the 2 years, one
paid holiday and 2 hours off for voting on Election Day,
and a $1 differential in the outermost zones. Later in
the meeting, however, the committee lowered its wage
rate demand to 25 and 25 cents and dropped the requirement
for 2 hours off on Election Day The contractors raised
their wage rate offer to 20 cents and 20 cents, claiming
that this raise, with fringe benefits, actually amounted to
34 cents, and they refused the paid holiday
With respect to the 7-hour day, Mullen testified that
the contractors noted that there had been no union reaction
to the offer made by the Association to conform to the
other trades on this point and asked for an answer After
a short discussion it was determined that the Union wanted
to reduce the arrangement to writing, while the contractors
insisted on keeping it verbal, and the matter was permitted
to remain in that condition.
It was on the same day as this meeting that the joint
statement was signed by the employer chairmen of all
the negotiating committees affirming their refusal to reduce
the length of the workday Mullen's name appears handwrit-
ten on the statement but he denied signing it or authorizing
anyone to sign it for him. He refused, however, to disavow
the undertaking set forth in the statement
" All four employers in the Association were represented on the
committee
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When he went to the meeting of April 29, dust before
the expiration of the contract, Union President Hamilton
testified that he thought the parties were so close to agree-
ment that the meeting would see the signing of a contract.
Mullen also testified that he felt that they were close
to an agreement However, both of them, as well as Ross-
worm, testified that spokesmen for both sides stated that,
if final agreement were not reached at that meeting, each
side would revert to its original proposals The minutes
show that the Union stipulated that it was willing to
continue negotiations despite the termination of the agree-
ment
An additional indication of the closeness of the parties
to agreement was their considerable discussion as to whether
the men would be able to work beyond the termination
of the contract. The employers, while conceding that they
couldn't provide work if there was no completion of underly-
ing work, like piping and duct work, urged the Union
to come to an agreement, they said that they had "a
trick or two up their sleeve" to keep the men working,
explaining that they would send them to outlying areas
to work. The employers did, however, point out that they
would not keep the men working if employer picket lines
should be established at the fob sites but they declined
to predict the circumstances under which and the persons
by whom such picket lines might be set up.
The meeting closed with an undertaking by the union
committee to submit the contractors' offer to the member-
ship as quickly as possible. On Saturday, May 1, Business
Agent Rossworm telephoned Mullen to say that the union
members had rejected the offer but that, in accordance
with the Mayor's call for a moratorium on work stoppages,
they would report for work the following Monday, May 3.
6. Carpenters
contractors whether, if any other union obtained a shorter
workweek, the negotiators could reopen and take up that
question. The employers' spokesman said that they could
and, at this or one of the later meetings,1e a short stipulation
to that effect, typed without copies, was given to the union
committee with the understanding that it was to be kept
in safety and secrecy
Both Rubin and van Eekeren testified that there were
"a couple" of meetings between the second meeting and
the last one during the term of the contract, and that
the last one was held April 29 At one of these, according
to Rubin, the chairman of the contractors' committee
showed the union committee the point statement, signed
by the chairmen of all the negotiating committees, pledging
themselves to adhere to the 8-hour day 39
When the negotiators met on April 29 they were, accord-
ing to Rubin, "pretty close to an agreement," the employers
having offered the Union 17 cents an hour for each year
of the contract, and he could not remember any other
issues . Although van Eekeren testified that the two unre-
solved issues were the industry fund and the shorter work-
week, he also testified that the question of the shorter
workweek had been dropped with the delivery of the contrac-
tors' undertaking to reopen the issue under the stated
circumstances.40 Accordingly, I accept Rubins' testimony
that, at the close of the April 29 meeting they were "a
little bit apart on wages" and nothing else. The union
negotiators promised to consult their members and to call
the contractors on May 1, Saturday, to arrange a final
meeting. During this meeting, however, the union men
asked the contractors whether they were going to shut
down the fobs on Monday: the employers said they were
not but, when asked about Tuesday, said that that would
depend upon whether they "got struck."
7 Laborers
The parties to the collective-bargaining contract covering
carpenters, expiring April 30, were Eastern New York
and the Carpenters District Council of Albany, Troy, Sche-
nectady, and vicinity. The negotiating committee for Eastern
New York consisted of eight general contractor members
and, in addition, Managing Director van Eekeren who
attended most, if not all, of the meetings. His testimony
and that of Donald Rubin, one of the employer-members
of the committee, constitutes all the evidence in the record
concerning these negotiations
The first negotiation meeting was held early in April
and there were five or six other meetings before the contract
expired at the end of that month.
At the very first meeting the contractors noted that
the Union proposed a reduction in the workday to 7 hours
and they stated that no other subject could be considered
until this point was settled. Most of this meeting was
devoted to the question of the shorter workweek, despite
the Union's request that they move on to other items,
since the employers contended that their action on other
items "had a great bearing" on their disposition of the
question of the shorter workweek
A second meeting was held "very shortly" after the
first and, at this time, the union committee agreed to
negotiate on the basis of an 8-hour day but asked the
In the negotiations for the separate contracts between
Eastern New York and the area locals of the Laborers
Union, the employers were represented by Managing
Director van Eekeren and a committee drawn from the
general contractors Negotiations were conducted separately
with Local 190 of Albany and Local 452 of Troy, with
the third local involved, Local 157 of Schenectady,
undertaking to abide by the results of the negotiations with
the Albany local.
" Rubin was not certain whether this conversation occurred at the
first meeting and van Eekeren testified that the side agreement was
reached on April 14 and signed on Good Friday (which was, in 1965,
April 16) These two accounts are sufficiently close to justify a finding
that the writing described came into existence on April 16
" This statement came into existence on Monday, April 26, so there
was either a negotiation meeting on 1 of the first 3 days of that week
or the chairman of the contractors' committee showed it to the union
committee at the final meeting on Thursday, the 29th
4' According to van Eekeren, Union Negotiator Gardner had assured
him, on April 21, that the carpenters would not strike for the shorter
workday and that he told Gardner that the Board of Directors of Eastern
New York had decided to recommend a shutdown on May 3 but this
could be changed "if the unions dropped their shorter work week demand."
He also testified that Union Negotiator Hammel "kept coming back
to the shorter work week" despite the assurances of Gardner that "a
contract would be signed by the end of the month " This latter testimony
is highly subjective and I do not find that it accurately reflects a material
element of the negotiations
CAPITAL DISTRICT SHEET METAL
Edmund Corina, in 1965 the vice president of Eastern
New York, was the chairman of the employer negotiating
committee and he, as well as Managing Director van Eekeren
and Business Agent John F. Probeck of the Troy local,
testified concerning the negotiations. From their testimony,
it appears that there was but a single negotiating contact
with each of the locals, both about the middle of April.
In the second week of April, van Eekeren testified, he
telephoned Charles Mirabile, business agent of the Albany
local, and asked when they could meet. Mirabile said he
was tired of "holding the bag" by settling first and seeing
other crafts obtain greater wage increases; that he would
let the employers know when he was ready to meet with
them. The only other testimony concerning the negotiations
with the Albany local is van Eekeren's statement that
Mirabile assured him that his members would not strike
for a 7-hour day. There is no contrary testimony and
accordingly I accept van Eekeren's testimony.
There is no substantial dispute concerning the single
meeting between the employers and the representatives of
the Troy local Probeck testified that they met about April
14; that he delivered the Union's proposals, including a
request for a 30-cent wage rate increase for each year
of the proposed 2-year contract The employers termed
the wage rate increase "ridiculous" and offered 15 cents
a year. Probeck then said he would accept 20 cents each
year and sign a contract at once but the most that the
employers would do was to give him a promise that, if
the other crafts obtained a greater wage rate increase,
the Troy laborers would also get the greater increase
Probeck refused because, he said, he could not trust the
employers to carry out their promise. Corina corroborated
Probeck's testimony concerning the discussion of wage rates
and the fact that they separated without agreement. They
also agree that the Union made no request for a shortening
of the workday.41
8. Operating Engineers
The local of Operating Engineers with which Eastern
New York conducted negotiations prior to May 1 was
Local 106, of Albany, representing the operators of the
machines customarily covered by this union.42 Although
the General Counsel did not adduce any evidence concerning
these negotiations, van Eekeren testified, in Respondent's
defense, that Business Agent McGraw stated that the mem-
bers of Local 106 had authorized the negotiating committee
to call a strike, that he, van Eekeren, had accused McGraw
of delaying negotiations, and that McGraw had said that,
although the operating engineers were not themselves inter-
41 According to van Eekeren, they offered Probeck a wage rate increase
of 20 cents each year on condition that any announcement of settlement
fix the increases at 15 cents He also testified that Probeck asked a
35-cent-per-year wage increase and a 7-hour day but soon dropped the
7-hour day request I accept the testimony of Conna and Probeck,
rejecting that of van Eekeren on these points
" The labor organization representing the surveying employees in
the Albany area was Local 545-D of the Operating Engineers, with
headquarters in Syracuse, and the contract covering these employees
was not to terminate until December 1966
713
ested in obtaining a shorter workday, they were committed
to support the Building Trades Council in its effort to
that end. George P. Moran, business representative of Local
106, was called in rebuttal; he disputed van Eekeren's
testimony that the union representatives expressed disinter-
est in a shorter workday and that accusations of delaying
negotiations had been directed at McGraw He did concede,
however, that when the union representatives requested
a shorter workday they stated that they would not strike
specifically for that provision Moran also testified that,
in rejecting the union request for a shorter workday, the
contractors stated that they, and all the other employer
negotiating committees, had no authority to agree to any-
thing less than an 8-hour day and 40-hour week I find
it unnecessary to resolve the minor conflicts in the testimony
of these witnesses.
9. The lathers
The only testimony concerning the negotiations with
the lathers was given by van Eekeren, on behalf of Respond-
ents, who testified that Eastern New York conducted com-
bined negotiations with the Albany and Schenectady locals
and entered into separate but similar contracts with them;
that this craft customarily received the same wage rates
as the masons. He testified that he attended one of the
negotiation meetings, in the third week of April, at which
they discussed a shorter workweek, the industry fund, and
wages; that, in discussing the shorter workweek, the union
representatives stated that they were committed to the
7-hour day by their membership; that he was later informed
that the union negotiating committee had agreed to take
the contractors' offer-based on an 8-hour day 40-hour
week-back to their membership but the following day,
April 29 or 30, the union representatives informed him
that they would not put the offer before their membership
because "both unions were committed to a seven hour
day." As historical background for the union 's position,
van Eekeren testified that in 1963 the lathers had struck
for a shorter workday and that, after the strike was settled
on the basis of an 8-hour day, the men pursued a practice
of working only 35 hours a week by quitting 5 hours
early on Fridays, until an International union representative
intervened to assure observance of the contract.
C The Lockout
As shown above, the union effort to shorten the workday
was not new, and it had a broad base among employees
in the building construction industry in the Albany area.
Similarly well recognized was the employers' opposition
to the union effort. Prior to 1965, however, the employers
were sparing in their use of the lockout as a defense
to the union effort, presumably because of the uncertain
state of the law. It is notable that, when the Board of
Directors of Eastern New York met on February 16, it
used a euphemism when it agreed with its recently estab-
lished General Labor Committee47 that:
43 Consisting of the officers and chairman of all negotiating committees,
whether they were engaged in contract negotiations or not
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a demand for a shorter work week would be
resisted and that the organization would protect itself
in case the economical operation of the jobs would
be jeopardized by any or all unions after the expiration
date
The resolution prepared by Managing Director van Eekeren
for adoption by the general membership of Eastern New
York at its meeting on March 2 similarly featured "self-
protection" if "economical operations would be jeopardized"
but went further and authorized the Board of Directors
to call for a shutdown should an impasse be reached
in negotiations.
The decision of the Supreme Court in the American
Ship Building case" on March 29 was prominently displayed
in the March 31 issue of the Bulletin of Eastern New
York, distributed periodically to its members and others,
under the headline.
A MOMENTOUS DECISION
LOCKOUTS DECLARED LEGAL
UNITED STATES SUPREME COURT RULES
AGAINST NLRB AND FOR MANAGEMENT
Shortly thereafter, during the month of April, intensive
negotiations began in the several units and, as detailed
above, there was threaded throughout the negotiations the
expressed determination of the employers, under the pressure
of Eastern New York, to lock out the employees, if necessary,
in order to prevail in their opposition to the shortening
of the workday in 1965 McManus testified that he constant-
ly carried on a campaign for standardization of working
conditions in the field of building construction, that the
industrywide adamant opposition to any shortening of the
workday was his "baby", and that he took the chairmanship
of the masons' negotiating committee to assure the mainte-
nance of such opposition in that area It was McManus,
also, who took the lead in preparing the statement of
April 26, signed by the chairmen of all negotiating commit-
tees, stating their refusal to accept any shortening of the
workday. Similarly, the record shows, van Eekeren's partici-
pation in negotiations with several of the crafts resulted
in his broadcast of the message that the employers through-
out the industry would lock out the employees to prevent
any shortening of the workday
Also during this same month of intensive negotiations,
members of Eastern New York were receiving the periodic
Bulletins from that association The April 14 issue states-
The General Labor Committee has reiterated the posi-
tion of the general membership of Eastern New York
to unconditionally oppose any demands for a shorter
work day or work week.
*
the membership should remain alert as to the
possibility of a general work stoppage and should
14 American Ship Building Co v NLRB, 380 U S 300
take measures to cope with the situation if and when
it occurs.
This stated "possibility of a work stoppage"-implied by
the unions-was converted into the expressed determination
of the employers to take affirmative action when, on April
21, Managing Director van Eekeren sent a "directive"
to all members informing them that the Board of Directors,
on recommendation of the General Labor Committee, had
"decided to call for a shutdown on Monday, May 3, 1965"
and requested all members "to fully comply." On April
29, the General Labor Committee met, discussed the status
of the various negotiations, and recommended that the
Board of Directors request the employers to continue to
work on Monday but to close down their jobs at the
end of that day The Board of Directors agreed and Eastern
New York prepared and dispatched another communication,
dated April 29, which referred to the directive of the
21st and modified the effective time of the shutdown to
occur "at 4:30 (closing hour)" on May 3 Both letters
referred to the decision of the Supreme Court as legal
justification for the shutdown The press release issued
by Eastern New York on April 30 refers to the demands
of some of the unions for a shorter workweek, the opposition
of the employers, and states that "it seems incomprehensible
that Unions would push for a shorter work week, thereby
causing a workstoppage "
The contracts terminated Friday, April 30; on Saturday,
May 1, Local 6 of the Masons, representing the Albany
bricklayers and plasterers, held a special meeting to consider
the employers' offer While the attitude of the members
appears to have been clearly opposed to the contractors'
offer, since it was based upon continuation of the 8-hour
day, the union officials prevented the taking of any formal
action and told the members to make individual decisions
on whether to report for work Monday morning The
record shows the members' responses to have been as
diffuse as their instructions: on Monday, some reported
and worked; some reported and refused to work; and some
failed to report
On Saturday, however, some efforts were made to avert
the expected crisis: the Mayor of the city of Albany sent
a telegram to Eastern New York requesting that efforts
to negotiate new contracts be intensified and that any
work stoppage be postponed for at least a week. At about
1 p.m, and prior to receipt of the telegram, Managing
Director van Eekeren, of Eastern New York, and Henry
Landau, president of the Albany Building Trades Council,
had a telephone conversation in which they referred to
the problem of the bricklayers' uncertainty about reporting
for work on Monday and to the employers' requirement
that the demand for the shorter workday be dropped.
Later that afternoon, Eastern New York answered the
Mayor with a telegram stating that it had learned that
the bricklayers had voted to remain away from work and
that therefore , there was no point in its asking its member-
employers to comply with his request
On Monday, May 3, practically all employees-except
bricklayers-worked as usual but, as stated, many of the
bricklayers either failed to report or reported and refused
to work The various situations were reported to van Eekeren
CAPITAL DISTRICT SHEET METAL 715
at the offices of Eastern New York and, about the middle
of the day, a telegram was prepared and sent to all members
of Eastern New York, stating that "various unions struck
today for seven hour day"; that operations could not contin-
ue "under these drastic conditions"; and that all jobs should
be closed at the end of the day
Most of the members complied" and instructed their
employees not to report for work the following day and
until further notice. In some cases some work continued
for a day or two46 but the lockout was substantially complete
and effective. The record shows, and I find, that the work
stoppage was generally due to the call of Eastern New
York, that, although there were jobs at which members
of the masons' unions failed to report, in most instances
their absence did not make it impossible for the members
of other craft unions to perform their duties In any event,
Respondents' counsel, at practically the end of the trial,
stated that it was not contended that the absence of the
masons was the cause of the closing down of most of
the jobs and their brief states that Respondents in their
defense herein rely on the fact that they engaged in "defen-
sive conduct."
The record shows that Eastern New York and the other
Respondents, in effecting the lockout, temporarily interrupt-
ed the employment of 432 of Respondents' employees.
The names of the employees and their respective employers
are set forth in the schedule, Appendix B hereto. Some
of these employees were covered by contracts which were
in full force and effect The lockout continued until approxi-
mately May 8.
D. Contentions of the Parties
The General Counsel contends that, in the negotiations
and subsequent lockout, the Respondents acted jointly with
each other and with the nonrespondent employers and
associations and that the bargaining policies of the employers
in different units were fixed, at least in part, by the General
Labor Committee of Eastern New York; that the Respond-
ents involved in the sheet metal and asbestos workers'
units interfered with employee rights by threatening a lock-
out and that they failed to bargain in good faith: (i) generally;
(ii) by attempting to force the representatives of employees
in the several units to bargain as a single unit; (iii) by
adhering to a preconceived resolve to refuse any agreement
to shorten the workday; and (iv) by refusing to conclude
agreement in either of these units unless employee represent-
atives in other units agreed to retain the existing 8-hour
day The General Counsel further contends that Respond-
ents' lockout of their employees was not justified as a
defense to the unions' conduct and that it was violative
" John P Hand, president of Respondent John P Hand Heating
& Air Conditioning Corp, a member of Respondent Sheet Metal Associa-
tion, testified that he did not lock out his employees but continued
them at work except where prevented from doing so by the closing
down of the job involved Accordingly, the names of his employees
do not appear on the schedule of employees locked out
" Nonmember employers who failed to close down were requested
to do so by officials of Eastern New York and efforts were made,
by picketing conducted by officials of that association , to force them
to do so.
of the Act. With respect to some specific Respondents,
the General Counsel contends that they unjustifiably locked
out employees covered by unexpired contracts and thereby
violated Section 8(a)(5) as defined by Section 8(d)(4) of
the Act.
Respondents contend that the General Counsel, having
failed to adduce evidence concerning the negotiations with
seven additional unions whose contracts also expired April
30, has thereby failed to prove a "common scheme of
negotiations" and that the employers' approach to negotia-
tions, although they all opposed any shortening of the
workday, was not consistent or uniform With respect to
the lockout, Respondents claim alternately: (i) that they
engaged "in defensive conduct to the unions bargaining
threats and strike on May 3, 1965," or (ii) that, even
if there was no strike on May 3, Respondents were justified,
by the decision in American Ship Building, in using the
lockout "offensively, to put economic pressure on the unions
to change their bargaining position."
E. Discussion and Conclusions
I Preliminary matters
In view of the lack of serious conflict in the evidence,
several factual matters can be disposed of preliminarily.
On this record there can be no doubt that, whatever may
have been the established relationship among Eastern New
York, the specialized employer associations, and their
respective members,07 Respondents acted in close coopera-
tion with each other and with other members of Eastern
New York to present a united front against any shortening
of the workday or workweek Both John L. McManus,
chairman of the general contractors negotiating committee,
and Wilhelmus A. van Eekeren, the Managing Director
of Eastern New York, testified to their determined and
successful efforts to keep all the employer negotiating com-
mittees united and unyielding on this subject
There can also be no doubt that, in several sets of
negotiations, affirmative threats of lockout were made by
employer representatives48 and that the general background
of negotiations, set by Eastern New York, relied strongly
on the probability of an industrywide lockout in support
of employer insistence on maintaining the existing workday
and workweek.
The third matter which I find thoroughly established
by the record is the fact that the respondent employers,
acting in concert with each other and with the respondent
" i find it unnecessary to make specific findings in this area, other
than those set forth in section 1, above
" These threats , in my opinion , were part of the bargaining process
and cannot be held to be, as the complaint alleges , independent violations
of Section 8(a)(1) of the Act Paranite Wire & Cable Division, etc,
164 NLRB No 48, cited by the General Counsel in support of that
position , is distinguishable in that the threats in that case were not
made in the course of normal negotiations, as here, but were voiced
by the employer directly to the membership of the union It was under
those particular circumstances that the Board held that they constituted
coercive interference with protected activities and "an inexcusable intru-
sion into the private affairs of the Union and the employees it represented "
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
associations, locked out their employees at the close of
business on May 3 and thereafter. While there is testimony
that some of the masons failed to report for work on
May 3, and the General Counsel adduced a great deal
of testimony on whether certain craft employees could
have continued to perform their duties despite the absence
of other crafts, Respondents took the unequivocal position,
through the above statement by counsel close to the end
of the trial, that their defense was not based upon the
failure of the masons to report for work" Accordingly,
I find that the work stoppage involved herein was caused
by Respondents in locking out the employees of the respond-
ent employers
On the other hand, upon consideration of all the evidence,
it seems clear that the record will not support a finding
that any of the Respondents failed to bargain in good
faith in the ordinary meaning of that term, since they
met and discussed all proper subjects, notwithstanding their
adamant refusal to agree to any shortening of the workday,
and they continued discussions even after the lockout. Nor
will the record support a finding that Respondents insisted
that they would bargain only on a multiunit basis: on
the contrary, once the Thruway Motel proposal for overall
bargaining had been rejected by the unions, there is no
evidence of any substantial effort by the employers to
force the unions to bargain as a single unit and there
is abundant evidence that they conducted negotiations in
the separate, established units. Finally, it is clear to me
that the record will not support any finding of union
animus in the customary sense of that term- in other
words, it cannot be said that any action or position of
the Respondents was designed to discourage union activity,
to evade bargaining, or to destroy the existence or representa-
tive status of any of the unions involved
2. The issues
Although it has been necessary, in view of the theory
advanced and the evidence adduced by the General Counsel,
to describe the negotiations in eight separate crafts, the
complaint alleges violations of the Act connected with
the negotiations and lockout in only two of the units
the sheet metal workers by the named sheet metal contrac-
tors and the asbostos workers by the named insulating
contractors. The complaint, in addition , alleges violations
in the specifically charged lockouts: (a) of carpenters and
laborers by Respondent Nicholson; (b) of surveying employ-
ees by Respondent Basic; (c) of laborers by Respondent
Kilby; (d) of teamsters by Respondents Basic and Cooley-
Glenmont; 50 and (e) of sheet metal workers by Respondent
Latham.
" Respondents' brief makes reference to "economic justification for
the shutdown" in the failure of some masons to report for work However,
I regard the statement of counsel during the trial as binding since it
was made in a context showing due deliberation and it was accepted
as the basis for evidentiary rulings
so The complaint originally alleged this violation by Cooley but when,
during the trial, it became apparent that the locked out drivers were
actually employed by Glenmont, performing services for Cooley under
a contract between Cooley and Glenmont, and that the two corporations
were owned by members of the same families, the complaint was amended
to charge Glenmont with the violation
These alleged violations, furthermore, fall into two groups
which appear to call for separate discussion and disposition.
(a) those by the respondent sheet metal and insulating
contractors-and the other Respondents allegedly acting in
concert with them-who were negotiating new contracts
to succeed contracts terminating April 30; and (b) those
by Respondents Nicholson, Basic, Kilby, Cooley-Glenmont,
and Latham in locking out employees covered by collective-
bargaining contracts which were still in midterms'
3 The validity of the bargaining lockouts
The account of negotiations shows that the initial propos-
als of seven of the eight crafts described included a shorten-
ing of the workday .52 The intensity with which this proposal
was pressed , however , varied from the absolutely adamant
insistence of the masons and lathers, through the strong
pressure by the sheet metal workers and plumbers, the
not-so-strong pressure by the asbestos workers and the
acceptance of conditional assurances by the carpenters,
to the frank admission by the laborers and operating engi-
neers that they would not strike to obtain it. The employers
also took more than one position : the masonry , lathing,
plumbing, and sheet metal contractors adamantly refused
to discuss the subject; the asbestos and carpentry contractors
agreed to conform if the major trades agreed on a shorter
workday, the contractors employing operating engineers
claimed they "had no authority " to bargain on the subject;
and, in the discussion concerning a contract covering labor-
ers, the issue was not raised . The adamant position of
the masonry , lathing, plumbing, and sheet metal contractors,
however , made ineffective the conditional undertakings of
the asbestos and carpentry contractors.
In view of the factual situation set forth above, the
disposition of this case , in my opinion , must be governed
by the Board 's Decisions in the Detroit News57 and Darling"
cases, which appear to state the major principles now
applicable in determining the validity of bargaining lockouts
under the status afforded them by the Supreme Court
in American Ship Building Co. v. N.L. R.B.55
In the American Ship opinion the Supreme Court, over-
turning the Board rule that made employer lockouts unlaw-
ful except when based on specific defensive necessities,
enunciated general principles in this area . It held , primarily,
" The complaint also alleges that the members of Sheet Metal Associa-
tion locked out their employees on May 3 and 4 when the contract
"remained in full force and effect" This allegation is based upon the
provision in the expiring contract extending its term "until conferences
relating thereto have been terminated by either party " As noted at
the end of the factual account of the sheet metal negotiations , however,
Chairman Wmdelspecht of the employers' committee closed the meeting
of April 30 with the statement that he was declaring the contract confer-
ences terminated Although the General Counsel's brief seeks to draw
some unfavorable inferences from this declaration, he does not attack
its validity for the purpose of terminating the contract and I accept
it as such termination
" The laborers did not request a shorter workday
" The Evening News 4 cco, iatwn Oi, ner and Publisher ^,/ The Den-It
News," etc, 166 NLRB No 6, review denied sub nom. Newspaper Drivers
& Handlers' Local No 372 v N.L.R B., 404 F 2d 1159 (C A 6), cert
denied May 26, 1969, 395 U S
" Darling and Company, 171 NLRB No. 95
" 380 U S 300
CAPITAL DISTRICT SHEET METAL 717
that an employer's use of a lockout solely in support
of a legitimate bargaining position is not inconsistent with
the right of the union to bargain collectively. It also held
that a lockout does not necessarily have a "natural tendency"
severely to discourage union activity while serving no signifi-
cant employer interest, and that the lockout does not carry
any necessary implication that the employer thereby acted
to discourage union membership or otherwise to discriminate
against union members as such In that case, accordingly,
the Court held that, since the record did not show that
the lockout was motivated by hostility to the union or
by an effort to evade the bargaining obligation and that
it had not been shown that the lockout would necessarily
destroy the union 's capacity for effective representation,
but that the only intention proven was to resolve an impasse
and bring about the settlement of a labor dispute on favorable
terms, the employer's conduct did not violate the Act.
In the Detroit News case the Board, having recalled
its earlier decision56 for review in the light of American
Ship, applied the general reasoning of the Supreme Court
to a situation in which a respondent employer-the publisher
of the Detroit News-locked out its distribution employees
after the termination of their contract in aid of its bargaining
position with the Teamsters union which had struck another
employer, whose distribution employees it also represented-
the publisher of the Detroit Free Press-over similar issues
Both employers were members of an association which
handled their labor relations but there did not exist, with
respect to the distribution employees, a multiemployer unit
Before the commencement of the strike against the Free
Press and before they received the Teamsters' contract
proposals, officials of the News met with officials of the
Free Press to discuss their common problem vis-a-vis the
Teamsters. As the Board stated:
The News concluded that of the 18 or so issues remain-
ing between the Teamsters and the Free Press, 10
were also of interest to the News in its negotiations
with the Teamsters. Of these 10 issues, the News
considered 3 as being vital in its bargaining and urged
the Free Press to maintain its position on these under
all circumstances The News agreed that if the Team-
sters struck the Free Press over its refusal to accede
to any of those three demands, "the News would
support the Free Press and would not publish."
When the Teamsters struck the Free Press, the News
also suspended publication but its employees reported for
work and were paid for the first 3 days. On the fourth
day, however, it published, together with the Free Press,
a combined edition which was distributed by News distribu-
tion employees and, when this had been completed, the
News notified its distribution employees, and some others,
not to report for work until further notice. On April 19,
after a 4-day lockout, the disputed issues were resolved
and the News terminated its lockout.
The Board stated that the sole issue before it was whether
the News lockout of its distribution employees, for the
4 final days of the stoppage, was violative of Section 8(a)(1)
and (3) of the Act. After noting that the Supreme Court,
in American Ship, had held that an employer could lock
56 145 NLRB 996
out its employees, after an impasse had been reached,
"for the sole purpose of bringing economic pressure to
bear on the union to accept the employer's legitimate bar-
gaining position," the Board found that the lockout by
the News "was preponderantly designed to force the union
to accept [its] bargaining proposals." Furthermore, the
Board found also pertinent to its consideration of the case
the impact of the News' agreement with the Free Press
to lock out its employees if the union struck the Free
Press and the fact that the lockout had that stated purpose.
Noting that the "key demands" of the union were being
pressed upon each of the employers simultaneously, the
Board held that the interest of the News in using economic
pressure to implement its own bargaining was "grounded
upon a very real, direct, and immediate bargaining motiva-
tion in its own behalf' and dismissed the complaint against
the News.
With the important parenthetical notation that the Board,
in its subsequent decision in Darling and Company, supra,
eliminated the necessity that negotiation lockouts be prem-
ised upon an impasse in bargaining , we return to consider-
ation of the Board's principles in the Detroit News decision
as applied to this case. As the Board's opinion in that
case clearly implies-and as Member Brown 's dissent explicit-
ly states-the fact that the lockout by the News was to
assist another employer in a dispute with its employees
was relevant to a consideration of whether, assuming no
express evidence of union animus or evasion of bargaining,
the lockout was "inherently so prejudical to union interest
and so devoid of significant economic justification" that
no such evidence of unlawful intent was necessary The
interest of the News in supporting the Free Press position
in bargaining with the Teamsters was assumed, without
discussion, by the board, although the interests of these
two employers vis-a-vis the union cannot be described as
anything more than parellel.°' In this case, however, the
interests of the several groups of employers are more than
parellel, they are inextricably interwoven- not only is the
record replete with evidence concerning the interrelated
activities of the different crafts in the construction of a
building, but the relationship (which could even be assumed
on the basis of judicial notice) has been noted by the
Board in the following terms-
. cognizance must be taken of the peculiar conditions
which prevail in the building and construction industry,
as reflected in the record, and in particular the close
interdependence and the necessary operational sequence
See Publishers Arrn, of N Y, 139 NLRB 1092, affirmed 327 F 2d
292 (C A 2, 1964) Compare David Friedland Painting Co., Inc, 158
NLRB 571, enfd. 377 F 2d 983 (CA 3), where the Board and court
held violative of Section 8(a)(3) the employer's lockout of employee-
members of a painters local union which had no direct contractual
relationship with that employer and with whom it was not bargaining,
although it was engaged in bargaining with another group of employers
Conceding that the tendency of the lockout to discourage the employees'
membership in the union was slight , the court nevertheless held that
it looms large when compared with the economic justification for Fried-
land's action ." In other words, Fnedland 's interest in the bargaining
position of the other employers , who were negotiating with another
union in another geographical area, was not sufficient to justify his
lockout of employees in that other union
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the different craft functions inherent in commercial
construction.56
Furthermore, it is obvious that any variance in the length
of the working day among the several crafts would be
disruptive of construction procedures and would, in its
effect, limit the workday substantially to the hours of
those employees working the shortest time. The power
and light obtained through the services of the electricians
is vital to the performance of services by most of the
workers, the operation of lifts and other machinery by
the operating engineers is also necessary for much of the
work and the flow of materials; the carpenters must build
and disassemble the forms into which concrete is poured
by laborers after being brought to the place of pouring
by engineers, while the concrete finishers (masons) treat
the poured concrete so that it may serve as a foundation
for another layer. While the record shows that some crafts
can perform some work in the absence of others, the
general interdependence is sufficiently shown to justify the
employers' contention that operations on staggered hours
would be both difficult and expensive.59 Accordingly, I
find that the interest of the employers in the several crafts
involved in this case are sufficiently interwoven to justify
their taking common action in their common interest.
For the foregoing reasons, I conclude that Respondents'
action in locking out their employees covered by contracts
expiring on April 30 was in support of their bargaining
position on an important issue, the maintenance of the
8-hour day, and that, therefore, the lockout did not violate
Section 8(a)(1) and (3) of the Act.
4 The validity of the lockouts of employees covered by
contracts still in effect
As stated above, in addition to the sheet metal and
insulating employers, who were engaged in collective bar-
gaining for contracts to succeed those expiring April 30,
the complaint alleges violation of Section 8(a)(5) of the
Act, as defined in Section 8(d)(4), by the employers who
locked out employees covered by contracts which were
still in midterm.
Since the legal question involving these lockouts is subor-
dinate to that involved in the bargaining lockouts, the
facts concerning them have not been set forth in detail
thus far in this Decision and this omission will be remedied
at this point.
Latham Sheet Metal, referred to above in connection
with its commerce, is a close affiliate of Bickford & Moshier,
a member of the Mechanical Association (Albany plumbers),
having identical officers, directors, and stockholders and
sharing offices. When Latham began business in 1963,
it executed a copy of the then current contract of Sheet
Metal Workers Local 83 with Sheet Metal Association
5i Central California Chapter, The Associated General Contractors of
America, Inc, et al, 105 NLRB 767, 768
" It is to be noted that McManus specifically stated that all economic
issues were related to the length of the workday and that both he
and van Eekeren stated that only if the demand for a shorter workday
were abandoned would the employers suspend their plan to close down,
and continue negotiations for an additional 30-day period
as its contract with the Union and thereafter employed
members of that union under its terms. The contract provid-
ed that it should "remain in full force and effect until
the 30th day of April, 1963, and shall continue in force
from year to year . . unless written notice of reopening
is given not less than ninety (90) days prior to the expiration
date " Neither Latham nor the Union gave notice of reopen-
ing60 and it is clear that the contract between Latham
and the Union had been thereby automatically renewed
until April 30, 1966
On May 3, Latham had six nonsupervisory employeesb1
under the direction of General Manager Kavanaugh; they
were working on three jobs: the General Electric installation
at Waterford in Saratoga County, the Troy filtration plant
in Rensselaer County, and the plant of Mechanical Technol-
ogy, Inc, at Latham in Albany County All of these counties
are within the geographical jurisdiction of Sheet Metal
Workers Local 83.
At the close of the working day on May 3, Kavanaugh
told the men that "the jobs would not be running" the
following day Although some of the men reported at
the shop from time to time during the period May 4
through 18, they did not work. Operations were resumed
May 19
Basic Construction, a large general contracting company
based in Newport News, Virginia, was engaged in construc-
tion work on the new campus for the State University
in the city of Albany. When it entered the Albany area
on this job, its only one in the area, it became a member
of Eastern New York and hired all of its construction
personnel, except surveyors '61 under the various contracts
between Eastern New York and the several unions It
was the largest employer of construction workers in the
Albany area. The project manager for Basic kept himself
informed concerning the negotiations during Apnl and he
attended the meeting of the General Labor Committee
on April 29.
On May 3, Basic had about 600 construction men, other
than professional, clerical, and supervisory employees, at
work Among these were 8 truckdnvers,61 covered by the
unexpired contract with Teamsters Local 294, and 11 surve-
yors,64 covered by the unexpired contract with Operating
Engineers Local 545-D, as well as masons, carpenters,
and laborers, whose contracts had expired. After receiving
the telegram from Eastern New York calling for a shutdown,
Basic handed each of the construction employees a notice
stating that, "because of an industrial controversy in the
area" operations would be suspended as of 4:30 that after-
noon In accordance with the notice, all work by the
construction employees of Basic was suspended Work
recommenced May 19.
Glenmont Equipment Company was added as a respondent
when, during the trial, it developed that certain laid-off
" The Sheet Metal Association notice could not serve as notice on
behalf of Latham since Latham was not a member of the Association
Set forth in Schedule B
ei The surveyors were members of Operating Engineers Local 545-
D with headquarters in Syracuse , New York Albany is within its geograph-
ical Iunsdiction and Basic signed a contract with it covering the surveyors
" Set forth in Schedule B
64 Id
CAPITAL DISTRICT SHEET METAL 719
drivers, alleged in the complaint to have been employees
of Respondent Cooley Contracting Co., Inc., were in fact
employees of Glenmont It appears from the record that
all the stock of Cooley is held equally by Frank J Cooley
and Frank Zeronda and that the stock of Glenmont is
also held equally by these men and their families; that
Cooley and Zeronda are the only officers of both corpora-
tions and that the corporations share offices. Although
Glenmont takes contracting jobs on its own and rents
some of its equipment to outsiders, it appears that it rents
trucks only to Cooley and that it is under an agreement
to supply Cooley with trucks whenever they are needed.
On May 3, Cooley had jobs in operation at the State
Office Campus, the State University Campus, and on nearby
Washington Avenue, all in Albany. It also had a job at
the Cobleskill Agricultural College in Schoharie County 65
At the same time-and presumably in connection with these
Cooley jobs-Glenmont had three drivers, Charles Boehlke,
John Poniatowski, and Dennis Tremont who each worked,
according to Glenmont's records, 3 or 4 days during the
payroll week ending May 5. Since it was admitted that
Cooley closed down its jobs at the end of the day on
May 3, it is a fair assumption, and I find, that Glenmont
locked out these three drivers at the same time 66
Having reached the conclusion, with respect to the
employees covered by collective-bargaining contracts which
expired April 30, that Respondents did not violate the
Act when they locked out those employees in support
of an economic position during bargaining for successor
contracts, the question now for decision is whether Respond-
ent violated the Act in locking out the employees whose
collective-bargaining contracts were in midterm and con-
cerning which contracts no negotiations were pending. The
complaint alleges that such violation by Respondents flows
from the terms of Section 8(d)(4) of the Act, which, in
pertinent part, reads as follows:
8(d) . . . [T]he duty to bargain collectively shall
also mean that no party to such contract shall terminate
or modify such contract, unless the party desiring
such termination or modification-
(4) Continues in full force and effect, without
resorting to strike or lockout, all the terms and
conditions of the existing contract .. until the
expiration date of such contract . .
The General Counsel's argument, it is only fair to state,
seems not to be based upon the contention that Section
8(d)(4) must be given a rigid and mechanical interpretation,
so that the lockout of these employees prior to the expiration
of their contracts ipso facto violates the Act. From his
citation of American Stores Packing Co., el at, 158 NLRB
620, it would appear to be his contention that Respondents,
63 Schoharie County is within the geographical jurisdiction of Sheet
Metal Workers Local 83
" The record discloses that Kenneth Lewis, a member of Teamsters
Local 294 employed by Respondent Joyce & Kramer (presumably under
the contract between Eastern New York and that local), was also laid
off May 3, but the complaint does not allege that Joyce & Kramer,
a sheet metal contractor, violated the Act by laying off any drivers
and, therefore, Lewis' name does not appear on the list of employees
in the Appendix to the complaint among those alleged to have been
discriminated against by said Respondent
in their negotiations prior to the lockouts, were not bargain-
ing in good faith and that their conduct in locking out
these employees, therefore, was a continuation or extension,
by other means, of the same violation of the Act.
There are several difficulties, however, with this argument-
in the first place, assuming arguendo that the record required
a finding that Respondents had not bargained in good
faith with the Sheet Metal Workers and the Asbestos Work-
ers, it is nevertheless questionable whether that interference
with employee rights, that effort to discourage union mem-
bership, and that frustration of the process of collective
bargaining, directed at those unions and the employee-,
members thereof (although they might remove, from the
lockouts directed against them, the protection otherwise
extended by the American Ship decision) could serve as
a basis for finding unlawful a lockout of carpenters, laborers,
surveyors, and teamsters, whose unions were not involved
in bargaining at the time."
Furthermore, insofar as the General Counsel's argument
can be discerned from the cases which he cites, it is to
be noted that every one of the lockouts of employees
whose contracts had not expired occurred at a place within
the territorial jurisdiction of one or more of the unions
which were involved in bargaining (none of which has
been held to have been in bad faith) with Respondents
and that, therefore, they were not so remote from the
principal bargaining area that the lockouts were unjustified
under the principal bargaining area that the lockouts were
unjustified under the standards set by the Board in David
Friedland Painting Co., supra.
Finally, in addition to the failure of the record to sustain
the preliminary premise of the General Counsel's contention,
i.e., that Respondents had not been bargaining in good
faith, there is a further and, in my opinion, insuperable
obstacle to any finding of violation based upon the lockout
of these employees. In Mastro Plastics Corp. v. N L R. B.,
350 U.S. 270, the Supreme Court affirmed the Board's
Decision (103 NLRB 511) that a strike in protest of the
employer's unfair labor practices, executed despite a no-
strike clause in the contract and before the expiration
of the waiting period prescribed by Section 8(d) of the
Act, did not violate that section so as to deprive the
strikers of their status as employees In so doing, the
Court wrote (pp. 285-286), with respect to the employer's
Section 8(d) defense:
That paragraph requires the party giving notice of
a desire to "terminate or modify' such a contract,
as part of its obligation to bargain under 8(a)(5) or
8(b)(3), to continue "in full force and effect, without
resorting to strike or lock-out, all the terms and condi-
tion of the existing contract for a period of sixty
days after such notice is given or until the expiration
date of such contract, whichever occurs later " Section
8(d) thus seeks, during this natural renegotiation period,
to relieve the parties from the economic pressure of
a strike or lockout in relation to the subjects of negotia-
tion. The final clause of 8(d) also warns employees
" This statement, I recognize, is not applicable to the lockout of
Sheet Metal Workers by Latham, but other obstacles to acceptance
of the contention render this exemption academic
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, if they join a proscribed strike, they shall thereby
lose their status as employees and, consequently, their
right to reinstatement
The Board reasons that the words which provide the
key to a proper interpretation of 8(d) with respect
to this problem are "termination or modification."
Since the Board expressly found that the instant strike
was not to terminate or modify the contract, but was
designed instead to protest the unfair labor practices
of petitioners, the loss-of-status provision of 8(d) is
not applicable. We sustain that interpretation.
In Teamsters Local No. 741 (Los Angeles-Seattle Motor
Express Inc ), 170 NLRB No 13, Trial Examiner Spencer
expressly adopted, as a partial basis for his decision dismiss-
ing the complaint, a statement by Trial Examiner Leff
in an earlier case6B involving the interpretation of Section
8(d) that
[T]he command of Section 8(d) for a 60-day
notice as a prerequisite to strike action applies, not
to all strikes that may occur during a contract term,
but only to such strikes as are aimed at enforcing
a demand to modify or terminate a collective-bargaining
agreement.
and the Board, without comment, adopted Trial Examiner
Spencer's findings, conclusions, and recommendations.69
In American Ship Building Co., supra, the Supreme Court
pointed to the provision in Section 8(d) prohibiting resort
to both strikes and lockouts without compliance with the
procedures set forth therein and stated that the "correlative
use" of both terms in the Act contemplates that lockouts,
as well as strikes, "will be used in the bargaining process
in some fashion." In view of the Court's holding in that
case that a bargaining lockout, untainted by motives vital
for finding violations of Section 8(a)(1) and (3) of the
Act, has a status similar to a strike for the same purpose,
it is a fair inference that resort may be had to the foregoing
cases, involving strikes, for the purpose of determining
whether the lockouts of employees covered by unexpired
contracts, herein held not violative of Section 8(a)(1) and
(3),70 nevertheless violated Section 8(a)(5) solely through
se International Union, United Mine Workers, etc. (Boone County
Coal Corp, et a!), 117 NLRB 1095,1121
69 See also Local 156, United Packinghouse Workers (Du Quoin Packing
Co ), 1 17 NLRB 670, in which the respondent union was held to have
violated Section 8(b)(3) by sinking without giving the notices required
by Section 8(d), where its answer stated that it had called a strike
"on the issue of wages only "
10 I find that the purpose of these lockouts was the same as it was
in the case of those involving employees engaged in bargaining, i e ,
to bring economic pressure to bear in aid of Respondents ' bargaining
position , and that Respondents ' efforts, through these lockouts, cannot
the failure of Respondents to comply with Section 8(d)(4)
On the basis of those cases, therefore, I conclude that
since there is nothing in the record to justify a finding
that Respondents' lockouts of employees covered by con-
tracts in midterm were motivated by an effort on Respond-
ents' part to modify or terminate any of those contracts,
those lockouts cannot be held violative of Section 8(a)(5)
of the Act.
On the basis of the foregoing analysis of the record
and the law, I conclude that Respondents have not engaged
in the unfair labor practices alleged in the complaint.
Upon the foregoing findings of fact, and the entire record
in this case, I reach the following:
CONCLUSIONS OF LAW
1 The individually named respondents are employers
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The associations named as respondents act as agents
of employers engaged in commerce and are employers
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
3. The charging unions are the collective-bargaining repre-
sentatives of employees in the units set forth in the'com-
plaint.
4. Respondents' statements , during the course of bargain-
ing, concerning possible lockouts of employees, did not
constitute an unfair labor practice within the meaning of
Section 8(a)(1) of the Act.
5. The acts and conduct of Respondents during the
course of negotiations with the Charging Parties, including
their lockout of employees on May 4 and immediately
thereafter, did not constitute unfair labor practices affecting
commerce within the meaning of Section 8(a)(1), (3), and
(5) of the Act
6. The acts and conduct of Respondents in locking out,
on May 4 and immediately thereafter, employees covered
by collective-bargaining contracts which had not expired
did not constitute unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and 8(d)(4) of the
Act.
RECOMMENDED ORDER
It is recommended that the complaint herein be dismissed.
be said to be either unjustified in that endeavor by the facts in this
case, or so remote, under the standards set by the Board Decision
in David Friedland Painting Co, supra, as to be violative of Section
8(a)(1) and (3) of the Act
CAPITAL DISTRICT SHEET METAL 721
CRAFT CONTRACTING EMPLOYER
APPENDIX A
A R E A
Date of Contract
CONTRACTING UNION Termination
ricklayers, Masons astern New York
Albany
Bricklayers, Masons, Plasterers,
Marble, Pile & Terrazzo Workers
Local Union No. 6
Bricklayers, Masons, Plasterers,
and Cement Finishers Construction Employers Troy Marble, Tile & Terrazzo Workers April 30, 1965
ile and Terrazzo apitol District Tile, Marble,
Schenectady
Albany,
Local Union No 10
Bricklayers, Masons, Plasterers,
Marble, Tile & Terrazzo Workers
Local Union No 16
Tile and Terrazzo Division of
Workers Terrazzo and Slate Troy and Bricklayers, Masons etc. Workers April 30, 1967
Tile and Terrazzo
Contractors Association
Capitol District Tile, Marble,
Schenectady Local Union Nos. 6, 10 and 16
International Association of Marble,
Stone and Slate Polishers, Rubbers
Helpers Terrazzo and Slate Albany and & Sawyers, Tile and Marble Setters, April 30, 1967
Contractors Association vicinity Helpers and Marble, Mosaic & Terr-
azzo Workers and Helpers
Local Union No. 59
Laborers Eastern New York International Hod Carriers, Building
Construction Employers Albany and Common Laborers April 30, 1965
Eastern New York
Construction Employers Troy
Local Union No. 190
International Hod Carriers, Building
and Common Laborers April 30, 1965
Eastern New York
Construction Employers Schenectady
Local Union No. 452
International Hod Carriers, Building
and Common Laborers April 30, 1965
Kilby Bros . Inc Newburgh and
vicinity
Local Union No. 157
International Hod Carriers, Building
and Common Laborers May 31, 1967
Local Union N. 17
Nicholson Company
U S.A.
International Hod Carriers, Building
and Common Laborers October 26, 1965
Plumbers Mechanical Contractors Associ-
ation of the Capital District
Albany United Association of Journeymen
and Apprentices of the Plumbing
and Pipefitting Industry of the April 30, 1965
Bickford & Moshier, Inc.
Trojan Hardware Co., Inc.
Troy
United States and Canada
Local Union No 7
United Association of Journeymen
and Apprentices of the Plumbing
and Pipefitting Industry of the pril 30, 1965
Sheet Metal
Workers
Capital District Sheet Metal,
Roofing and Airconditiomng
Northeastern
New York
United States and Canada
Local Union No. 61
Sheet Metal Workers International
Association pril 30, 1965
Contractors Association Local Union No. 83
Latham Sheet Metal Corp. Northeastern
New York
Sheet Metal Workers International
Association April 30, 1966
Insulation Workers Asbestos Contractors
Association of Albany
Albany and
30 mile radius
Local Union No. 83
International Association of Heat
and Frost Insulators and Asbestos May 1, 1965
Carpenters Eastern New York
Construction Employers
Albany, Troy,
Schenectady
Workers, Local No. 40
United Brotherhood of Carpenters
and Joiners of America; Albany, April 30, 1965
and vicinity Schenectady, Troy and vicinity
District Council of Carpenters
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A (Cont'd)
CRAFT CONTRACTING EMPLOYER A R E A CONTRACTING UNION
Date of Contract
Termination
Nicholson Company U S.A. United Brotherhood of Carpenters
and Joiners of America ; May 31, 1965
Hudson Valley District Council
of Carpenters
Lathers Eastern New York Albany Wood , Wire & Metal Lathers
Construction Employers International Union April 30, 1965
Local No. 166
Eastern New York Schenectady Wood , Wire & Metal Lathers
Construction Employers International Union April 30, 1965
Local No. 120
Operating Eastern New York Northeastern International Union of Operating April 30, 1965
Engineers Construction Employers New York Engineers, Local No. 106
Basic Construction Co. Upstate New York International Union of Operating December 31, 1966
(surveying) Engineers , Local 545-D
Teamsters Eastern New York Albany International Brotherhood of Team-
Construction Employers sters, Chauffeurs , Warehousemen April 30, 1967
and Helpers of America
Local Union No. 294
Iron Workers Eastern New York Eastern International Association of Bridge,
Construction Employers New York Structural and Ornamental Iron May 31, 1967
Workers, Local Union No. 12
APPENDIX B
EMPLOYEES LOCKED OUT BY RESPONDENT 4EMPLOYERS
B Sheber & Sons E. Brockway W. McCormick C. R Horton
T. J. Sheehan R. Chase J. Meneck W. Walker
Varden Bros Roofing C. Clink L. Meneconza W. Watson*
ConahanR MercerL J. A. ValozeJ Fischer (4) . .
J. Joy (4) F. Costa
G. Cromer, Jr.
L Mitsch
J. Morrett
Kaiser Boswell Co.
C BorwhatDVenditti Bros G. Cromer, Sr. G. Morrison
.
R BoswellJ. R. Armstrong* M Deyeo V. Nacaretta W BoswellH. Hilton J. Dickey R Nespor E BozekJ. Le Veille A. Dupont J. O'Connor CelusnickSG. F. Liccey, Jr. A. Englehart R. Ott
.
KlumpCG. Lucey J. Gaboldon F. Parisi
.
H KlumpF. Salvaggio W. Hanson R. Pracher OleshakVR. Schafer H. Harootian F. Prokrym
.
ReichelNR. R. Taylor L. Hathaway S. Prokrym
.
J RhodesN. Venditti B. E. Hedden H. Roy R ShawJ
Levi Case Co. J. Henry E. Sauter
.
L. Albrecht R. Insero SissonC Monahan & Loughlin
J C. Anderson N. Irish
.
TaylorJ H. Carter
S. Armour F. Kelly
.
TompsonD F. Chase
J. Bacucci R. King
.
J. Tompson G. Churchill, Jr.
A. Barbieri R. La Fleur G Wagner G. Garrow
J. Barczewski S. Lazinski WhiteT R. Graver
W Belak A Leninger
.
R. Yevoli W. Green
R. Bicowicz R. Liszewski R. Gregory
BiscowitzF L Littorin J Hellem.
A. Bonk W. Mahoney Skyway Roofing Co. Ingram
J. Bordeau M. Mammont C. E. Antemann R. Jarvis
R. Bradt D. Martin R Flynn (4) C. Keech
E Braungart R. Masula C E. Horton D. Lunt
CAPITAL DISTRICT SHEET METAL
APPENDIX B ( Cont'd.)
723
R. Major P. Cardinali W Simpson W. D. Mitchell
C. Mattison A. Decker A. Smith W. O'Connor
R. Mattison V. Di Nova E Smith H. Rall
S. H Miller B. Donnelly (5) R. Smith W. Reed
C. Monahan W. Duplis E. Sponable R. Rososman
E. Monahan G. M. Engel E. Steglein T J Ryan, Jr
G. Monahan A. Fisher P. Steglein P. Stansfield
J Monahan J. Flynn B. Stracher W. Stansfield
L. Monahan L. Fox A Winders F. Stuto, Jr.
M Monahan F. Fuss E. W Tompkins Co F. Stuto, Sr
R. Monahan R. Giroux
.
R Malone G. Swift
R. J. Monahan J. Haack
.
E. A. Van Acker J. Trembley
NaylorR HammondK F. Voight.
E Nims
.
R Hauf Nicholson Co R. Walters.
PeryeaT
.
HaufW R. Bel J. V. Warren.
Peryea JrW
.
HenryG W. Bogardus J White, ..
R Pudy
.
HerrewynJ F. Bondy W. J. Winne
A. Sherman
.
R. Hilton 0. Fleig T Yanko
E. Stark J. F. Kochank*
A. France
Robert A. Keasbey Co.W GrantE. Steves A. Krug* . V JrD Cardella
H. Taylor LandauJ
. .. ,G Hornung
A P Console*
R; Yole
.
G Martinelli
. .A. Lane R Damm
James A ckroyd & Sons J McCarthy (5)
.J. Lucas (4)
Mahoney B. P. Fallon*G
P. D Billings E. Mege
.
A. FarinaMcCarthyM
D. J. Bouchard J Miller
.
McGiffert D. E. Frye, JrF
A. Brannigan J. A. Milot
.
D. E. Frye*H Morton
J. Brannigan L. Mossey
.
Oettinger A. HeimW
P. Brannigan J. O'Brien (5)
.
A Paohno M. Holt, Jr.
E. Dederick G R. Parker Rice M. Holt, Sr.K
C. Edwards J Quackenbush
.
R. HoltG Ryan*
E. Hallett N. Rhodes (5) W. Stonisch R. C. Lavonte
J. Harbour T. Rogers H. Weinert D. Morehouse
M. Kepp L Russo D. Yager Rene Pailley
HiltonJ H. Sharer (7) Roger Pailley.
G H nds J. Teeling
Armstrong Contracting & Supply G. Pisonneault. y
J Jordan W. Traynor
A. J. Dolan* D. D. Satile
*
B. Kavanaugh S. Van Alstyne
P. Gizzi M Sekanic*
H. O. Kehn* D. Van Liew Johns-Manville Sales Corp. A. Spinelli
J. Kelly J. Way W. Aganastopolus T. Stanley, Jr.
J. Le Cuyer J. White B. Beaudoin C Warren*
W. Lupe M. Blache Tri-City Insulation Co
E Maloney Joyce & Kramer D. Bodgett C Farnsworth
W. Margon W. Blanchard H. Bowers Fitzpatrick*R J
L. McCarthy W. F. Bragg*
. .T. Caldwell GiddingsG
G. Mouseau F. Bullis
.B. R. Cardella R Sawyer*
M. Napalatino G. Carnevale
.B. Dallaird M Yanko*
M Pourier J. Christie
.J Danalovich.
T Raco P. Christie F. Di Mura
Basic Construction Co.
F Radley J. Delahanty J. Di Mura
D. Chapman.
E Dolezel J Dunn A. FieldJames Ackroyd & Sons
.
FrederickA Elario R. ForestD JE. Rowe
.
D. Gregory
. .
Forkeutis C. GrabickiN
J. Sabinski J. Gregory
.
J Fournier D. McIntyreW. Sharer G. Harvey Gambacorta J. MillerBJ. Smiley J. W. Hausmann
.
Hamilton D. PalmerWS. Sokack W. Heimburg
.
Holt* H. RansfordERF. Thomas F. Herbst, Jr.
..
Jr.* L. ReevesHotalingR AR. Tripp F. Hoffman
,. .
Johnson R. J. SmithRD. Trujack D. Hogan
.
Kersten F. WhitingSB. J. Williams W. Kramm
.
Maddalla Nicholson Co.PW. Williams L. Lape
.
Markel F. AscienzoCF. Winters K. Lewis
.
Markel K. BryneLC Zanico W. Markowitz
.
T. May A. Crome
C. R. Joyce & Son K Martinez R. J. McCaffery* N. Desco
W. Baldwin J. Ryan D. McHugh 0. Devoy
R. Bonner W. Schultz W. Mickel T. Eigo
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PPEN DIX B (Cont'd.)
J. Frangello K. Winchell R. Loucks P. Marinello
S. Gambino Kilby Bros. E. W. Nieman W. Maurice
S. Giordiano J. Beltri L. Sherlock P. McGee
H. Jones J Gana J. Miller
V. Legg C. S. Kelly McCreary Metals Corp. H. Pryme
J. Loughery C. Quido R. Austin W. Scoons
F. Martens F Bishop E Sellow Sr
McPhailJ Glenmont Equipment Co.
.
D Burns
. , .
E Sutherland. C Beohlke Jr
. .
S. Moscato . , . M Cristel K Swann
F Mudry B. Lavery
.
DanahayC
.
E Thomas. C Martin Jr . .T Myers . , . W Duplis D Usci.
P Nezich* J. Poniatowski
.
P Gorman
.
D Uwe. D Tremont . .F. Palumbo . W. Gottfried R. Van Ravensway
J. Paserra Trojan Hardware Co. D. Haack W. Warburton
P. Petramale W. J. Michele H. Haack E. Waver
J. Quirk* R. Sheely J. Hanson M. Wiesmaier
J. Santora Latham Sheet Metal Corp. D. Hayes Precision Metal Works
R. Van Wagner S. Abate (4) R. Jordan A. J. Deno*
A. Washington H. L. Dupont* 0. Kassabasian P. G. Lee (7)
G. Weis E. Kavanaugh E. Kenton C. Mara
J. Willoughby G. Liszewski P. Lyngard A. K. Taylor (4)
* These employees were identified, y themselves or another witness, as Note The numeral (4), (5), or (7) following certain names indicates that
foremen or assistant Foremen, but no finding of supervisory status is made the employee was laid off on May 4, 5, or 7 All other employees on this list
with respect to them were laid off at the close of business on May 3