Carty Heating Corp.

National Labor Relations Board - Board Decisions

Apr 30, 1957

117 N.L.R.B. 1417 (N.L.R.B. 1957)

CARTY HEATING CORPORATION 1417
Carty Heating Corporation , and Mechanical Contractors Associ=
ation of New York, Inc. and Jack Bahian and Steamfitters
Branch , Enterprise Association of Pipe Fitters and Appren-
tices of Greater New York , Nassau and Suffolk Counties and
Vicinity, Local Union 638 of the United Association of Jour-
neymen and Apprentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada, AFL-CIO, Party to
the Contract
Steamfitters Branch, Enterprise Association of Pipe Fitters and
Apprentices of Greater New York , Nassau and Suffolk Counties
and Vicinity , Local Union 638 of the United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL-CIO and Jack
Babian
Steamfitters Branch , Enterprise Association of Pipe Fitters and
Apprentices of Greater New York, Nassau and Suffolk Counties
and Vicinity, Local Union 638 of the United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL-CIO and Jack
Babian and Carty Heating Corporation, and Mechanical Con-
tractors Association of New York, Inc., Party to the Contract.
Cases Nos. 2-CA-4456, 2-CB-1517, and 2-CB-1552. April 30,
1957
DECISION AND ORDER
On May 15, 1956, Trial Examiner Lloyd Buchanan issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices, and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondents had not engaged in certain other unfair labor prac-
tices alleged in the complaint and recommended dismissal of those al-
legations. Thereafter, the Respondents and the General Counsel filed
exceptions to the Intermediate Report and Respondent Carty Heating
and the General Counsel also filed supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection-with
this proceeding to a three-member panel [Chairman Leedom and
Members Rodgers and Bean].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
117 NLRB No. 186.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediate Report, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only insofar as they are consistent
with our decision herein.'
1. We find, in agreement with the Trial Examiner, that the Respond-
ent Association and Respondent Carty violated Section 8 (a) (1) and
(3) and the Respondent Union violated Section 8 (b) (1) (A) and
(2), by maintaining and enforcing a contract which unlawfully dis-
criminated against employees who were not union members with respect
to employment and the payment of welfare fund and educational fund
benefits.
We further agree with the Trial Examiner that the Respondent
violated Section 8 (a) (1) and 8 (b) (1) (A), respectively, by includ-
ing in their contract provisions restricting the payment of pension-
fund benefits to union members only. We disagree, however, with his
conclusions, and find merit in the General Counsel's exceptions thereto,
that the incorporation of the discriminatory pension-fund provisions
in the contract did not also violate Section 8 (a) (3) and 8 (b) (2), and
that the patently unlawful closed-shop provision of the Joint Arbitra-
tion Plan was not a part of the Respondents' contract.
a. The Trial Examiner found no violation of Section 8 (a) (3) and
8 (b) (2) with respect to the pension fund because he found that,
despite the contract provision, in actual practice pension benefits were
available on a nondiscriminatory basis to both members and nonmem-
bers of the Union. This finding is, however, contrary to the evidence
in the record, inasmuch as Spur, office manager of the pension fund,
testified without contradiction that benefits are not received by non-
members but are limited solely to members of the Union. Moreover,
the Board has consistently held that the mere inclusion of discrimina-
tory provisions in a contract, whether or not such provisions have been
enforced, is also a violation of Section 8 (a) (3) and 8 (b) (2), as in-
herent in such discriminatory provisions is the tendency to encourage
membership in a union in violation of the Act.2 For the same reasons,
we find that by including the unlawful pension-fund provisions in
their contract, the Respondents violated Section 8 (a) (3) and 8 (b)
(2), respectively.
'In view of the basis for our decision we deem It unnecessary to, and therefore do
not, pass on the Trial Examiner 's comments and conclusions concerning the alleged un-
lawful understanding and practice of the parties , as set forth in section II, B, of the
Intermediate Report.
2 See, e . g, County Electric Co, Inc, 116 NLRB 1080, in which the Board , in affirming
the principle that such an illegal provision is violative of the Act, pointed out that the
Board found no violation of Section 8 (a) (3) in Port Chester Electrical Construction
Corporation , 97 NLRB 354 , only because in the latter case the parties had made an oral
agreement not to enforce the unlawful provision and these was sufficient evidence to show
that they intended to adhere to this agreement The contrary is true in the instant case
CARTY HEATING CORPORATION 1419
b. With respect to the Joint Arbitration Plan, article VIII of the
Respondents' contract and principle 12 of the Twelve Principles,' in-
corporated by reference in the agreement, provide that disputes be-
tween trades as well as jurisdictional disputes shall be adjusted "in
accordance with the method set forth in the Joint Arbitration Plan of
the New York Building Trades." Section 3 of that Plan states that the
employer parties to the Plan "agree to employ members of the trade
unions only...." [Emphasis added.]
The Trial Examiner found that the Respondents' contract did not
adopt the entire Plan, including the clearly unlawful provisions of
Section 3, but merely the Plan's "method" of adjusting disputes,
which he interpreted as encompassing only Section 4 and the following
sections of the Plan. We believe, however, that the Trial Examiner
has misinterpreted the clear meaning of the various provisions of the
Plan. Thus, Section 32 of the Plan, found by the Trial Examiner to
be incorporated in the contract, provides that the employers' associa-
tions and unions which are parties to the Plan agree to "observe and
abide by the provisions of this Plan," and does not except from its
coverage the closed-shop provision of Section 3, above. Moreover,
under other sections of the Plan, only a party to the Plan may use
the facilities envisioned by the Plan for adjusting disputes, and the
record, apart from any provisions in their contract, reveals that the
Respondents are such parties. Accordingly, we find that the Associa-
tion, Carty Heating, and the Union have incorporated in their con-
tract the illegal union-security provision of Section 3 of the Joint
Arbitration Plan, and have thereby violated Section 8 (a) (1) and
(3), and Section 8 (b) (1) (A) and (2), respectively.
2. We agree with the Trial Examiner that Respondent Carty, an
Association member, and Respondent Union violated Section 8 (a)
(3) and (1), and 8 (b) (2) and (1) (A), respectively, when Carty
acceded to the Union's demands and discharged Babian on June 23,
1955, because he had not secured a working permit from the Union.
We find no merit in Respondent Carty's contention that the fact that
a union member, Kleinfeld, was laid off at the same time as Babian
indicates that there was no discriminatory motivation for Babian's
dismissal, and that Babian was laid off because of lack of work.
Pursuant to the union rules, incorporated in the contract, which re-
quired two-man teams, Babian and Kleinfeld worked together on the
project. When the Union sent out a two-man team as a replacement
for Babian and Kleinfeld, they were necessarily laid off together by
Carty. Moreover, the very next day, when the Union learned of
Kleinfeld's dismissal, it required Carty to reemploy him immediately.
8 The Twelve Principles "upon which trade agreements should be based" are endorsed
by the Building Trades Emoloyers' Association and the Building and Construction Trades
Council, both of New York City.
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This latter action by the Union with respect to Kleinfeld is therefore
further evidence of the parties' discriminatory practice,and supports
the finding of discriminatory motivation in the discharge of Babian:
3'. The complaint originally alleged that the Respondent Union
violated Section 8 (b) (2) and (1) (A) by requiring or instructing
the Dierks Heating Company, Inc., to discharge Babian on or about
November 3, 1954, and thereafter to refuse to reinstate him and to,
deny him employment at other Dierks' projects because he was not a
member of the Union. At the hearing, the allegation concerning the
discharge of Babian was struck from the complaint without objection
by any party as the evidence indicated that Babian was discharged on.
October 27, 1954, prior to the 6-month limitation period of Section 10
(b) of the Act.4
The Trial Examiner found no evidence to support the remaining
allegation of the complaint that within the 6-month period the Union
caused Dierks to refuse to employ Babian. As to this, the General
Counsel contends that Dierks denied reinstatement and new employ-
ment to Babian pursuant to its obligations under the illegal hiring
provisions of the contract between the Respondent Union and the
Respondent Association, of which Dierks was a member, and that the
Union therefore caused Dierks to discriminate against Babian in
violation of the Act.
The record establishes that Babian was first employed by Dierks in
May 1954, after he had been required to secure a work permit from,
the Union, and was employed on various Dierks' projects until his
discharge on October 27, 1954, the last being at the Garden City
Senior High School. The Dierks foreman on this job was Stephenson,
who was also, by virtue of the Union's constitution, the shop steward
for the project.
Several days before his discharge on October 27, 1954, Babian was
informed by Stephenson that steamfitter members of the Respondent
Union were coming to the project looking for work, and that
Stephenson would be required to lay off Babian because he was not a
member and only had a working permit. On the day of his discharge,
Foreman Stephenson told Babian that he had been told by the Union's
local business agent, Daly, to lay off Babian because a member of the
Union was coming to the job to take Babian's place.5
After being discharged, Babian was told by President Dierks that
he had to lay off Babian because he was not a union member and had
been replaced by one. President Dierks also told Babian that he
had work for him at another company project but that he could not
employ Babian there until he either joined the Union or secured a
A copy of the charge was served by registered mail upon the Union on May 2, 1955.
c Stephenson's actions in his dual capacity as foreman and steward bound both the
Union and Dierks. Grove Shepherd Wilson J Krnpe, Inc., 109 NLRB 209, 215
CARTY HEATING CORPORATION 1421
union working permit. Dierks then sent Babian to Union Secretary-
Treasurer Donnelly, in order to secure a permit, but Donnelly refused
to give Babian a permit.
All of the foregoing events occurred more than 6 months before
any charge was filed and served on the Respondent Unions How-
ever , in December 1954, within the 6-month period, and again in May
1955, Babian sought employment from Dierks . On each occasion,
President Dierks told Babian he had work for him and would like
very much to employ him , but could not do so because Babian still
was not a member of the Union or had not received a permit card.
It is clear from the foregoing facts that Babian was denied em-
ployment by Dierks because that Company was maintaining and en-
'forcing the contract between the Association and the Union contain-
ing the illegal union-security provisions , supra. Once the Union had
executed such a discriminatory contract and embarked upon a policy
of enforcing its illegal provisions , as evidenced by its actions in se-
curing Babian's discharge in October 1954, it must be deemed re-
•sponsible for the events , as in the instant case, that logically follow
from such practices .' We find, accordingly , that within 6 months of
the filing and service of the charge , the Respondent Union caused
the Dierks Heating Company , Inc., to refuse to employ Babian be-
cause he was not a union member or had not secured a working permit
from the Union , and that the Respondent Union thereby violated
' Section 8 ( b) (2) and ( 1) (A) of the Act.
We shall , accordingly , order the Respondent Union to make Babian
whole for any loss of pay he may have suffered as a result of Dierks'
discrimination against him . Back pays shall date from the time
Babian was first refused employment by Dierks after November 3,
1954, until Babian was employed by Carty on May 16,1955; arid•shall
cover such periods within that time as Babian would have been
employed on various Dierks' projects but for the discrimination
against him . In keeping with the Board's newly established rule,9 no
deductions shall be made from this amount on account of social
security and other similar benefits."
4. In accordance with established Board practice ," we shall order
that the Union send copies of the notice , which it is required to -post,
0It is well settled that events antedating the 6-month period are admissible as bnck-
grmmd evidence to shed light on events occurring within the statutory period Acme Boot
Manufactunnq Company, Inc, 105 NLRB 164.
Utah Construction Co., 95 NLRB 196, 206.
e ' 11• Woolworth Company, 90 NLRB 289 , 291-294: Crossett Lumber Company, 8
NLRB 440 See also Republic Steel Corporation v N L R B , 311 U S. 7
N International Brotherhood of Teamsters ( Lancaster Transportation Company), 116
NLRB 399
This does not, however, affect Respondent Carty's obligations in this respect
00 See. Alaska Chapter of the Associated General Contractors of America , Inc. 113 NLRB
41, 43
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the Respondent Association , and that the. Association distribute
these notices to its employer members with the request that they post
them.
ORDER
Upon the entire record in these cases , and pursuant to Section 10
(c) of the National Labor Relations Act, as amended , the National
Labor Relations Board hereby orders that :
1. The Respondent Carty Heating Corporation , its officers , agents,
successors, and assigns , shall :
a. Cease and desist from :
(1) Encouraging membership in any labor organization by dis-
criminatorily discharging any of its employees , by discriminating in
any other manner in respect to their hire or tenure of employment or
any term or condition of employment, by maintaining or enforcing the
clauses of any agreement with any labor organization which discrim-
inate among employees on grounds of union membership with respect
to benefits , or which require its employees to join, or maintain their
membership in, such labor organization as a condition of employment,
except as authorized in Section 8 (a) (3) of the Act.
(2) In any other manner interfering with, restraining , or coercing
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
b. Take the following affirmative action, which the Board.finds will
effectuate the policies of the Act :
(1) Jointly and severally with the Respondent Union- make Jack
Babian whole for any loss of pay he may have suffered by reason of
its discrimination against him, in the manner set forth in the section
of the Intermediate Report entitled "The Remedy."
(2) Preserve and upon request make available to the Board, or its
agents, for examination and copying, all payroll records , social-
security payment records, timecards , personnel records and reports,
and all other records necessary to analyze the amounts of back pay due
and the rights of employment under the terms of this Order.
(3) Post at its office in New York, New York, and in each of its
places of, employment in New York City and in Nassau and Suffolk
Counties , copies of the notice attached hereto marked "Appendix A." 12
Copies of said notice to be furnished by the Regional Director for the
Second Region , shall , after being duly signed by its authorized repre-
sentative , be posted by Carty Heating immediately after receipt
thereof, and be maintained by it for sixty ( 60) consecutive days there-
after, in conspicuous places, including all places where notices to its
employees are customarily posted. Reasonable steps shall be taken
13 In the event that this Order is enforced by a decree of the United States Court of Ap-
peals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States 'Couit of Appeals , Enforcing an Order '°
CARTY HEATING CORPORATION 1423
by Carty Heating to insure that said notices are not altered, defaced,
or covered by any other material.
(4) Mail to the Regional Director for the Second Region signed
copies of the notice *attached hereto marked "Appendix A," for posting
by the Association and its employer members and the Union if they be
willing. Copies of said notice, to be furnished by the Regional Di-
rector for the Second Region, shall, after being duly signed by a
Carty Heating representative, be forthwith returned to said Regional
Director for such posting.
(5) Notify the Regional Director for the Second Region, in writing,
within ten (10) days from the date of this Order, what steps have
been taken to comply herewith.
2. The Respondent Mechanical Contractors Association of New
York, Inc., New York, New York, its officers, agents, successors, and
assigns, shall :
a. Cease and desist from :
(1) Encouraging membership in any labor organization by main-
taining or enforcing the clauses of any agreement with any labor or-
ganization which discriminate against employees on grounds of union
membership with respect to benefits or which require employees to
join, or maintain their membership in, such labor organization as a
condition of employment, except as authorized in Section 8 (a) (3)
of the Act.
(2) In any other. manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
b. ' Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(1) Post at its office in New York, New York, copies of the notice
attached hereto marked "Appendix B." 13 Copies of said notice, to
be furnished by the Regional Director for the Second Region, shall,
after being duly signed by its authorized representative, be posted by
the Association immediately after receipt thereof, and be maintained
by it for sixty (60) consecutive days thereafter in conspicuous places.
Reasonable steps shall be taken by the Association to insure that said
notices are not altered, defaced, or covered-by any other material.
(2) Mail to the Regional Director for the Second Region signed
copies of the notice attached hereto marked "Appendix B," for posting
by Carty Heating and the Union, if they are willing. Copies of said
notice, to be furnished by the Regional Director for the Second Region,
shall, after being duly signed by the Association representative, be-
forthwith returned to said Regional Director for such posting.
(3) Mail to each member of the Association a copy of Appendixes
B and C hereto attached, to be furnished by the Regional Director,,
'e See previous footnote
1424 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
with the request that said members post such notices immediately
upon receipt thereof, and maintain them for sixty (60) consecutive
days thereafter in conspicuous places, including all places where
notices to their employees are customarily posted, and further request
that said members take reasonable steps to insure that such notices
are not altered, defaced, or covered by any other material.
(4) - Notify the, Regional Director for the Second Region, in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
3..The Respondent Steamfitters Branch, Enterprise Association of
Pipe Fitters and Apprentices of Greater New York, Nassau and
Suffolk Counties and Vicinity, Local Union 638 of the United Associa-
tion of Journeymen' and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL-CIO, New York,
New York, its officers, representatives, agents, successors, and assigns,
shall:
a. Cease and desist from :
(1) Maintaining or enforcing the clauses of any agreement with
Mechanical Contractors Association of New York, Inc., or any other
association or employer engaged in commerce within the meaning of
the Act, which discriminate among employees on grounds of union
membership with respect to benefits or which require employees to
join, or maintain their membership in, the Union or any other labor
organization as a condition of employment, except as authorized in
Section 8 (a) (3) of the Act.
(2) Demanding that any employer discharge employees, or in any
other manner causing' or attempting to cause any member of the
Association or any other employer engaged in commerce within the
meaning of the Act to discriminate against an employee, in violation
of Section 8 (a) (3) of the Act.
(3) In any other manner restraining or coercing employees in the
exercise of the rights guaranteed in Section 7 of the Act.
b. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(1) Notify Jack Babian, the Respondent Carty Heating, and
Dierks Heating Co., Inc., in writing, that it withdraws its objections
to the employment of Babian by the Respondent, Carty Heating and
the Dierks Company.
(2) Make Jack Babian whole for any loss of pay he may have
suffered by reason of the discrimination against him by Dierks
Heating Company, Inc., in the manner set forth hereinabove; and
jointly and severally with the Respondent Carty Heating make Jack
Babian whole for any loss of pay.he may have suffered by reason of
the discrimination against him by Carty, in the manner set forth in
the section of the Intermediate Report entitled "The Remedy."
CARTY HEATING CORPORATION 1425
(3) Post at its office in New York, New York, copies of the notice
attached hereto marked "Appendix C." 11 Copies of said notice, to
be furnished by the Regional Director for the Second Region, shall,
after being duly signed by its authorized representative, be posted by
the Union immediately after receipt thereof, and be maintained by it
for sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to its members are customarily
posted. Reasonable steps shall be taken by the Union to insure- that
said notices are not altered, defaced, or covered by any other material.
(4) Mail to the Regional Director for the Second Region signed
copies of the notice attached hereto marked "Appendix C," for posting
by Carty and the Association as well as the latter's employer members,
if they be willing. Copies of the said notice, to be furnished by the
Regional Director for the Second Region, shall, after being duly
signed by the Union's representative, be forthwith returned to said
Regional Director for such posting.
(5) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps have
been taken to comply herewith.
IT IS FURTI-IER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges other violations of the Act not found
herein.
14 I b,,d.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT encourage membership in Steamfitters Branch,
Enterprise Association of Pipe Fitters and Apprentices of Greater
New York, Nassau and Suffolk Counties and Vicinity, Local
Union 638 of the United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, or any other labor organization,
by discriminatorily discharging any of our employees, by- dis-
criminating in any other manner in respect to their hire or tenure
of employment or any term or condition of employment, or by
maintaining or enforcing the clauses of any agreement with the
above-named or any other labor organization which discriminate
among employees on grounds of union membership with respect
to benefits or which require our employees to join, or maintain
423781-57-vol 117-91 -
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their membership in, such labor organization as a condition of
employment , except as authorized in Section 8 (a) (3) of the Act.
WE WILL NOT maintain or enforce any agreement which re-
quires employers to contribute money.to the Steamfitters ' industry
pension, welfare , and educational funds, or any other fund, for
the purpose of providing benefits to employees unless provision is
made in the administration and operation of said funds for the
payments of benefits on a nondiscriminatory basis without regard
to whether employees are or are not members of the Union.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion , to form labor organizations , to join or assist Steamfitters
Branch, Enterprise Association of Pipe Fitters and Apprentices
of Greater New York, Nassau and Suffolk Counties and Vicinity,
Local Union 638 of the United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada , AFL-CIO, or any other labor organ-
ization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or
to refrain from any or all of such activities , except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
WE WILL, jointly and severally with Steamfitters Branch, Enter-
prise Association of Pipe Fitters and Apprentices of Greater New
York, Nassau and Suffolk Counties and Vicinity , Local Union
638 of the United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO, make Jack Babian whole for any loss of pay
suffered as a result of the discrimination against him.
All our employees are free to become, to remain, or to refrain
from becoming or remaining, members of the above-named Union
or any other labor organization , except to the extent that this
right may -be affected by an agreement requiring membership in
a labor organization as a condition of employment , as authorized
by Section 8 (a) (3) of the Act. -
CART,Y HEATING CORPORATION,
Employer.
Dated ---------------- By ------ -----------' '-------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
CARTY HEATING CORPORATION
APPENDIX B
NOTICE TO ALL EMPLOYEES
1427
Pursuant to a.Decision and Order of the National Labor Relations
Board , and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby -notify the employees of our employer
members that :
WE WILL NOT maintain or enforce the clauses of an agreement
with Steamfitters Branch, Enterprise Association of Pipe Fittei's
and Apprentices of Greater New York, Nassau and Suffolk
Counties and Vicinity , Local Union 638 of the United Association
of Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada , AFL-CIO, or any
other labor organization , which discriminate among employees
with respect to benefits on grounds of union membership, or
which require employees to join, or maintain their membership
in, such labor organization as a condition of employment , except
as authorized in Section 8 (a) (3) of the Act.
WE WILL NOT maintain or enforce any agreement which re-
quires employees to contribute money to the Steamfitters' in-
dustry pension , welfare, and educational funds, or any other
fund, for the purpose of providing benefits to employees unless
provision is made in the administration and operation of said
funds for the payments of benefits on a nondiscriminatory basis
without regard to whether employees are or are not members of
the Union.
WE WILL NOT in any other manner interfere with , restrain, or
coerce employees in the exercise of the right to self-organization,
to form labor organizations , to join or assist Steamfitters Branch,
Enterprise Association of Pipe Fitters and Apprentices of
Greater New York, Nassau and Suffolk Counties and Vicinity,
Local Union 638 of the United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada , AFL-CIO, or any other labor organ-
ization , to bargain collectively through representatives of their
own choosing , and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection,
or to refrain from any or all of such activities , except to the extent
that such right may be affected by an agreement requiring mem-
1428 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD
bership in a labor organization as a condition of employment, as
authorized in Section; 8 (a) (3) of the Act.
MECHANICAL CONTRACTORS ASSOCIATION
OF NEW YORK, INC.,
Employer.
Dated---------------- By------------------------------------
(Representative) (Title) -
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX C
NOTICE TO ALL MEMBERS AND ALL EMPLOYEES OF CARTY HEATING
CORPORATION AND OF ALL EMPLOYER MEMBERS OF THE MECHANICAL
CONTRACTORS ASSOCIATION OF NEW YORK, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify you that :
WE WILL NOT maintain or enforce the clauses of any agreement
with Mechanical Contractors Association of New York, Inc.,
or any other association or employer engaged in commerce within
the meaning of the Act, which discriminate among employees on
grounds of union membership with respect to benefits or which
require employees to join, or maintain their membership in, this
or any other labor organization as a condition of employment,
except as authorized in Section 8 (a) (3) of the Act.
WE WILL NOT maintain or enforce any agreement which requires
employers engaged in commerce within the meaning of the Act
to contribute money to the Steamfitters' industry pension, wel-
fare, and educational funds, or any other fund, for the purpose
of providing benefits to employees unless provision is made in
the administration and operation of said funds for the payments
of benefits on a nondiscriminatory basis without regard to whether
employees are or are not members of the Union.
WE WILL NOT cause or attempt to cause Carty Heating
Corporation or any other employer engaged in commerce within
the meaning of the Act to discharge or otherwise discriminate
against any employee in violation of Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees
in the exercise of the right to self-organization, to form labor
organizations , to join or assist Steamfitters Branch, Enterprise
Association of Pipe Fitters and Apprentices of Greater New
York, Nassau and Suffolk Counties and Vicinity, Local Union
638 of the United Association of Journeymen and Apprentices
CARTY HEATING CORPORATION 1429'
of the Plumbing and Pipefitting Industry of the United States
and Canada, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to
refrain from any or all of such activities, except to the extent that
such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
WE WILL make Jack Babian whole for any loss of pay suffered
as a result of the discrimination against him by Dierks Heating
Company, Inc., and jointly and severally with Carty Heating
Corporation, will make Jack Babian whole for any loss of pay
suffered as a result of the discrimination against him by Carty
Heating Corporation.
STEAMFITTERS BRANCH, ENTERPRISE ASSOCIATION
OF PIPE FITTERS AND APPRENTICES OF GREATER
NEW YORK, NASSAU AND SUFFOLK COUNTIES
AND VICINITY, LOCAL UNION 638 OF THE UNITED
ASSOCIATION OF JOURNEYMEN AND APPRENTICES
OF THE PLUMBING AND PIPEFITTING INDUSTRY
OF THE UNITED STATES AND CANADA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The consolidated complaint herein , as amended , alleges that the Union has
violated Section 8 (b) (2) and (1) (A) of the National Labor Relations Act, as
amended, 61 , Stat. 136, by requiring or instructing Dierks Heating Company, Inc.,
to discharge Bahian on or about November 3, 1954, because he was not a member of
the Union , and thereafter to refuse to reinstate him and also to deny him employ-
ment at other projects; by requiring or instructing Carty Heating Corporation to
discharge Bahian on or about June 23, 1955, because he was not a member of the
Union , and thereafter to refuse to reinstate him; by maintaining and enforcing with
the Mechanical Contractors Association of New York, Inc.,' and its members, includ-
ing Carty Heating, a collective-bargaining agreement which requires Association
members to employ members of the Union only or to hire them on a prefer-
ential basis , and which limits eligibility for pension and educational benefits pro-
vided by Association members to employees who are members in good standing
of the Union and provides greater welfare benefits for employees who are mem-
bers of the Union than for those who are not members ; and by maintaining and
enforcing "an agreement , understanding or practice" which requires Association
members to hire only union members or holders of union work permits, and to
accord hiring and retention preference to union members over holders of such
permits. The complaint further alleges that , by the first-mentioned agreement and
by the other agreement or practice , the Association and Carty Heating have violated
1 This Respondent was formerly known as Heating , Piping and Air Conditioning Con-
tractors New York City Association, Inc.
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 (a) (3) and (1) of the Act, and that Carty Heating further violated these
sections by discharging Babian on or about June 23, 1955, because he was not a
member of the Union; and thereafter refusing to reinstate him. The answers, with
amendment and stipulation, deny the allegations of unfair labor practices.
On motion by counsel for the Union, the allegation concerning the discharge by
Dierks was stricken, the evidence indicating that it was barred by the 6-month
limitation in Section 10 (b) of the Act.
A hearing was held before a duly designated Trial Examiner at New York, New
York, from April 10 through 16, 1956, inclusive. Counsel were heard in oral argu-
ment at the close of the hearing.
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. THE BUSINESS OF THE VARIOUS COMPANIES AND THE ASSOCIATION, AND THE
LABOR ORGANIZATION INVOLVED
It was admitted and I find that Carty Heating, Dierks, and the Association are
severally New York corporations, that the Association is an association of em-
ployers engaged in the business of installing heating, piping, and air-conditioning
systems in the New York City area, and that it performs, among other things, the
function of negotiating and executing collective-bargaining agreements, on behalf
of its members, with labor organizations, including the Steamfitters Branch,2 Enter-
prise Association of Pipe Fitters and Apprentices of Greater New York, Nassau and
Suffolk Counties and Vicinity, Local Union 638 of the United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, representing employees employed by its members in
their operations in New York City and Nassau and Suffolk Counties; that Carty
Heating and Dierks have been at all times material hereto and now are members
of the Association; that during 1954 the members of the Association, in the course of
their business operations, purchased materials and equipment valued at more than
$2,000,000, of which materials valued at more than $1,000,000 were transported
in interstate commerce to their places of business in New York State directly from
other States of the United States; and during 1954 the members of the Association,
in the course of their business operations, manufactured, sold, and distributed
products and equipment valued at more than $2,000,000, of which products and
equipment valued at more than $1,000,000 were shipped in interstate commerce
from their places of business in New York State directly to other States in the
United States. I find that the Association and all of its members including Carty
Heating and Dierks severally are, and at all times material hereto have been, en-
gaged in commerce within the meaning of the Act.
It was admitted and I find that the Union is a labor organization within the
meaning of the Act. Local 638 herein holds a so-called combination charter: it
has a Steamfitters Branch and a Metal Trades Branch. The Union herein is the
Steamfitters Branch. Reasons being noted on the record, the finding was made at
the hearing, with exceptions duly noted, that the two branches are different and
are separate labor organizations within the meaning of the Act. Additional evi-
dence to the same effect, adduced later in the hearing, need not now be detailed.
II. THE UNFAIR LABOR PRACTICES
To allege an agreement or practice, in the disjunctive, is to indicate uncertainty;
to claim that evidence shows one or the other is to confuse. An agreement itself
may, under the cases, be violative. Similarly violative may be a practice, whether
or not it be pursuant to agreement. But where practice is relied on, establishment
of an agreement, although itself violative, does not prove the practice; the practice
must be proved.
On the other hand, when it is argued that an unlawful agreement must be en-
forced ere violation be found, reference being to an agreement which has been
distributed or otherwise publicized, the restraint inherent in such an agreement
aside from enforcement is overlooked.3 Employees, actual and prospective, are
interfered with by the presence of unlawful requirements to the point where they
may not challenge the agreement even if enforcement thereof be not attempted.
2 "Steamfitters Branch" was inserted on motion granted at the hearing. Documents in
evidence variously refer to Enterprise Association as apparently the Steamfitters Branch
of Local 638; to the Metal Trades Branch of Local 638; and to the Metal Trades Branch
of Enterprise Association . The Respondent Union herein is the Steamfitters Branch of
Local 638, whatever different names may be employed
3 New York State Employers Association, Inc, 93 NLRB 127, 129
CARTY HEATING CORPORATION 1431
Regardless of enforcement , the tendency to interfere is clear . Whether, in addition
to violation of Section 8 (a) (1) and 8 (b) (1) (A), violation of Section 8 (a) (3)
and 8 ( b) (2) is to be found , the distinction being between the existence and
the use of the power , is another matter.4
Where the agreement is neither in writing or otherwise made generally known
(this would presumably cover the "understanding " to which the General Counsel
refers ), the "inherent interference " just described does not exist , and Section 8 (b)
(1) (A) of the Act is not violated . In such a case, the causative element of the
agreement , or the unlawful practice aside from any agreement , may nevertheless
exist and be shown as a violation of Section 8 (b) (2). (in other words , as the Board
has held , violation of Section 8 (b) (1) (A) is not "derivative .") But the violation
in that case is based on evidence of specific acts which indicate the understanding
reached and are themselves specifically violative . The secret understanding, if
proved as an attempt to cause discrimination , does not itself establish the separate
violation alleged as an unlawful practice. Conversely (still considering a separate
allegation of unlawful practice in addition to that of unlawful agreement or under-
standing ), a finding of unlawful practice , if any, is based on proof of facts which
constitute such a practice . Where attempt is made to prove a practice, testimony
concerning an alleged secret agreement or understanding is material only if and to
the extent that it is needed to explain the practice ; to repeat , it is not a substitute for
proof of the practice . (To avoid misunderstanding , I would repeat here that a
proven agreement may itself lead to a finding of violation ; we are here considering
an allegation of unlawful practice , as urged by the General Counsel, where no
agreement is shown or in addition to any finding based on an agreement .) On the
other hand, it should be clear that where an agreement has been . shown to have
been entered into and maintained or recognized , further _ proof of practice there-
under is unnecessary.
Understanding of principles and the reason therefor should preclude confusion
and loose reference to agreement and practice without clear distinction between the
two. It will enable us further to consider whether the evidence establishes agree-
ment, practice, or both, yet prevent an erroneous finding of one where only the other
or neither exists.
As already suggested , the distinctions noted are also important in determining
relevance of testimony. Events prior to the 6-month statutory period may be
relevant where a continuing agreement is established. On the other hand, where
practice is relied on, phylogenic examination is irrelevant; attention should be di-
rected to events within the statutory period, and only where and to the extent that
they explain later practices are earlier events to be considered The statutory limita-
tion will not be avoided by inference of repetition of any earlier practice
A. The collective-bargaining agreement
Executed prior to the commencement of the 6-month statutory period herein, a
collective-bargaining agreement has been, with an extension, maintained between
the Association, including Carty Heating, and the Union. In that agreement the
Union and the members of the Association respectively undertake to enforce and
observe the Union's rules, which, in the booklet entitled "Trade Agreement," are
set forth immediately prior to the portion entitled "Agreement." The arguments of
counsel to the contrary notwithstanding, I find that such rules are by reference made
part of the agreement, and that any rule which, when thus incorporated in the
agreement, violates the Act makes the agreement violative at least pro tanto.
The General Counsel points to rules XVIII, XIX, and XX as allegedly unlawful.
Rule XVIII provides that all employers shall pay into a welfare fund 3 percent of
the gross wages of members of the Union. It further provides for compliance with
the terms of an Agreement and Declaration of Trust, dated May 15, 1946. The
latter declaration, now in effect, recites "an industry-wide payroll tax of 3% payable
by the Employers for the sole benefit of the members of the Union." Conceivably
it might be argued, although the point was not noted at the hearing, that the various
documents provide that, although industrywide, the payroll tax is based on earnings
of union members only; and that, whatever the practice, the agreement between
the Association and the Union provides lawfully for a members-only payroll tax
and for members-only benefits. But one must strain for such an interpretation of
what may be ambiguous and perhaps contradictory provisions concerning the tax
base. That the intent was to include nonmembers appears in the provision of benefits
for certain nonmembers. Further, the practice followed indicates that nonmembers
4 Busch Kredit Jewelry Co , Inc, 108 NLRB 1214, 1219, Jandel Furs, 100 NLRB 1390,
1392.
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are included not only for benefits but also with respect to payments into the fund.
But while including nonmembers, both the declaration and the practice discriminate
against them: benefits are payable for members of the Union, their wives and their
children; as for nonmembers, wives and children are not included, and there is
further limitation (different from that which applies to members) to the period
"while [they are] holding valid permit cards from the Union." 5 Whether or not
quarterly notices are now stamped as they formerly were to distinguish nonmembers
from members, the fund records show such distinction. This is so clear that we
need not weigh the effect of a notice of increased benefits which was addressed to
members only and refers to benefits for members and their dependents, although
Spur testified that it was sent to covered holders of permit cards also. Maintenance
and enforcement of the welfare fund violate Section 8 (a) (1) and (3) and 8 (b) (1)
(A) and (2) of the Act. (Should my reference to the practice followed according
to the agreement be rejected and it be otherwise found that the agreement is not
itself violative, the practice actually followed would be violative and would so be
found in the next subsection.)
Rule XIX provides similarly for a pension fund, and refers to an Agreement and
Declaration of Trust, dated November 1, 1950. Here again "three (3ofo) percent
of the gross wages paid to steamfitters, helpers and apprentices employed in the
City of New York, Nassau and Suffolk Counties, New York," are payable into the
fund; but unlike the welfare-fund provisions, the pension fund declaration and its
rules limit benefits to members of the Union. (The pension application form indi-
cates similar limitation.) Denial of benefits to nonmembers, payments being passed
on wages paid to all employees, whether members or not, is discriminatory, and the
agreement in this respect again restrains employees in violation of Section 8 (a) (1)
and 8 (b) (1) (A) of the Act. On the issue of discrimination and attempt to cause
discrimination, however, it was testified that, despite the provisions of the documents
noted, pension benefits for members and nonmembers alike remain in a pooled fund
and that all are eligible and have coverage. Such testimony overcomes the dis-
criminatory aspect of the agreement in this respect, and I find that the pension-fund
provisions do not violate Section 8 (a) (3) and 8 (b) (2) of the Act.6
Rule XX provides that employers shall pay into the educational fund an amount
equal to 1 percent of the gross wages paid to steamfitters and apprentices, and
provides further that employers shall be bound by the provisions of the fund. Under
the terms of the document entitled "Steamfitters' Industry Educational Fund,"
postapprentice study is limited to members of the Union. There is no evidence of
exculpatory practice in this connection. The limitation of benefits to members
despite the broad base for payments is in violation of Section 8 (a) (1) and (3)
and 8 (b) (1) (A) and (2) of the Act.
Article II of the collective-bargaining agreement provides that the Union shall
furnish the Association with up-to-date lists of union members. While this may sug-
gest a restrictive hiring practice, it does not actually indicate limitation to union
members in hiring. A reasonable desire by employers to obtain experienced men
would prompt reference to union lists, and I would not infer from such lists alone
that they were to be used or were in fact used exclusively or discriminatorily against
nonunion men. Two provisions in article I, however, are incompatible with the
statutory provisions against discrimination. It is declared that if the Union "fails for
a period of six (6) days to supply any member or members of the Contractors'
Association with a sufficiency of competent steamfitters," the Joint Trade Board of
Arbitration shall take action. That board, it is later provided, shall consist of 4
representatives of the Association and 4 of the Union, shall have jurisdiction over
disputes under the agreement or the attached rules,7 and shall meet monthly to
i A booklet entitled "Group Insurance Plan," and listing the betnefits for holders of
"valid, effective permits cards" indicates that benefits are provided for dependents it
also otherwise provides for termination of coverage
On the other hand, questioning Spur, the office manager in charge of various funds,
concerning the practice followed under the various documents received, the General Coun-
sel elicited the statement that, during the last year or year and a half, permit ,men have
been carried until the fund office was notified to drop them In the absence of evidence
concerning such notification, this suggestion of semipermanence is too slight to overcome
the evidence of discrimination already noted Spur was clearly uncertain in this connec-
tion • "Some year s back-the [permit] man was covered for the term of the permit, as
far as I can recall I believe the system may have changed, and we just carry him covered
until we are advised of the contrary. . "
6 See footnote 4, supra.
1 This further indicates that the agreement embraces the rules as found supra.
CARTY HEATING CORPORATION 1433
consider probable future needs for steamfitters by association members. Again in
article I, reference to the Union's possible "failure" to supply enough steamfitters
indicates that members of the Association may or must ask the Union for men; since
there is no suggestion that the Union is required to supply steamfitters, it is reasonable
to infer that the issue to be arbitrated would be the employer's right to seek com-
petent steamfitters elsewhere. Skillfully drawn, the provision requires association
members to apply to the Union for men. That this is a closed-shop requirement,
since the Union will limit referrals to or prefer its members, is clear on reference to
the provisions in the so-called International Constitution which forbids working with
any who are not members of the overall organization. The local Union's constitu-
tion contains a similar prohibition and declares one of the objects of the Union to
be to assist members in securing employment. (The respective constitutions are not
incorporated in the agreement and are not in issue, and no finding is made that
they violate the Act. They are noted here for the light which they cast on the question
before us.) The direction that members shall not refuse to work with nonmembers
when there is a failure to supply a sufficient number of mechanics parallels the pro-
vision noted in article I of the agreement and, as an exception, underscores the gen-
eral application of the prohibition noted in the respective constitutions. This direction
is principle 7 of Twelve Principles so-called, which are included in the Trade Agree-
ment booklet and upon which, according to article X, the agreement is "based."
This inference that the agreement calls for discrimination in hiring is supported 8
by the provision that clearance cards from another labor organization, described in
rule XV, be accepted by the Union. There would be no need to require the Union
to accept clearance cards from another organization were employers free to hire
whom they would. Association members could readily "fulfill the requirements for
competent steamfitters" by employing those mentioned in the rule, whether or not
they were accepted by the Union. As far as the employers are concerned, such
acceptance into the Union could serve only one purpose: satisfaction of a closed-shop
requirement. These provisions in articles I and II of the agreement restrict employ-
ment in violation of the Act as alleged.
Indicating violation by the Union in maintenance of the agreement as it at least
attempts to cause employers to discriminate is the testimony by the vice president
of Carty (Thomas F. Carty, Jr., hereinafter referred to as Carty, his Company being
referred to as Carty Heating) that the Union claims that employers must send to it
for permits applicants who are not members of the Union, although the Association
makes a contrary claim. Of course, disagreement on that item, the agreement being
otherwise maintained, does not exculpate the Association from the violations found.
The Respondents cite a provision in article X of the agreement to the effect that
if by change in Federal laws "it shall become legal" for the Union to demand a closed
shop, it may cause amendment of the agreement to the end that closed-shop practices
shall be followed; and they argue that such a provision bars a finding that a closed
shop is elsewhere indicated. Despite this argument and without reference to what
the situation might be if article X by its terms barred a closed shop (as it does not)
pending a change in Federal laws, we have here a case where restrictive practices are
earlier established, as found, and a clause is later inserted for contingent formal
recognition of such practices. Article X does not purport to modify the earlier
provisions. It does not lessen their illegality.
As for principle 4, cited by counsel for Carty,
The employer shall be at liberty to employ and discharge whomsoever he sees
fit; and members of the unions shall be at liberty to work for whomsoever they
shall see fit....
such a declaration, in context, does not alter the restrictions elsewhere imposed. It
means that employers, limited to a given group of potential employees, are free to
choose within that group; and union members (here the limitation is clear) are de-
clared free of a system of peonage.
Article VIII of the agreement refers to a Joint Arbitration Plan to be agreed upon.
There is no evidence of violation in that connection. The article further provides
that trade jurisdictional disputes "shall be adjusted in accordance with the method
set forth in the Joint Arbitration Plan of the New York Building Trades as adopted
on July 9th, 1903," and thereafter amended. The General Counsel cites sections 1
and 3 of the Plan, which provide for its coverage and for closed-shop hiring. But,
8 The testimony that nonmember applicants for jobs have been sent to the Union to be
"cleared through," snfra, indicates that the parties have interpreted the agreement as
discriminatory These events antedating the statutory period, are not cited as viola-
tions ; but they explain the agreement, which has been continued
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as quoted, the agreement does not adopt the entire Plan, but only the method of
adjusting disputes, which is set out in section 4 et seq., and which is not itself at-
tacked. Despite a promise to indicate alleged illegality in the Plan as part of the
agreement entered into by the parties, the General Counsel has made no such showing
or argument. In fairness to the parties, we have limited ourselves to the elements as
pointed out and argued by counsel. There is no evidence of illegality in this method of
adjusting disputes. The remainder of the Plan is not before us. (Whether or not the
Plan has been followed in practice is considered in the next subsection.) I find no
illegality in article VIII of the agreement.
The General Counsel also cites principle 12 of the Twelve Principles, supra, which,
like article VIII of the agreement, provides for adjustment of disputes in accordance
with the method set forth in the Joint Arbitration Plan. For the reasons noted in
connection with article VIII, I find no illegality here.
Counsel for the Association, aware of decisions that execution and maintenance
of an unlawful agreement constitute interference, urges that an "employee [would]
find it very difficult . to read this agreement and see any illegality in it." But
the tendency to restrain persists although the violative provisions be disguised or
hidden. Even where the provisions are clear, violation does not depend on
employees' awareness and understanding of the language employed. It is the signifi-
cance of such language, presumably intended by the parties to the agreement and
communicated to employees, rather than the language itself, which tends to restrain.
The violations arising out of the agreement and found in this subsection are
ascribable to the Union, the Association, and Carty Heating
B. Other agreement, understanding, or practice
Having alleged and proved an unlawful agreement which included closed-shop
provisions and unlawful employment preference to union members, the General
Counsel attempted to prove in addition that there has been "an agreement, under-
standing or practice" whereunder employment is limited to union members and
holders of union work permits, and that preference is accorded to those in the first
of these groups over those in the second. In a bill of particulars, he cites as "the
written part of the [newly alleged] agreement," the agreement previously alleged
and found supra. There is no evidence of any additional agreement or under-
standing unless it be shown in evidence of a practice "performed or maintained."
We must therefore weigh the evidence of a practice.
Where an agreement is found to have been enforced, such enforcement or main-
tenance is a practice. The violation found supra in maintenance of the agreement
is thus based on and includes the execution of the agreement and the practice in
maintaining it. The practice is part of the violation already found. If the General
Counsel seeks another finding of violation based on practice, he must submit proof
beyond that on which the prior finding has been based. Repetitive reference to the
same evidence will not sustain a different allegation or new findings.
The instant case is to be distinguished from the Grove Shepherd case,9 where
certain respondents were not parties to the agreement which was found to be viola-
tive. As to such respondents, finding of violation could be based only on the practice
followed; and after findings were made against others because of the agreement, the
practice followed was considered as to these. In the instant case, we have already
considered all of the evidence offered and found violation because of the mainte-
nance and continued recognition or enforcement of the written agreement between
the Association and the Union. No additional and different evidence has been
offered to support additional and different findings.
Except where the remedy may be different, it is unnecessary and sometimes futile
to seek instances of unlawful practice pursuant to an unlawful agreement main-
tained in effect. It is certainly time consuming Illegality of the agreement having
been shown, the burden of proving a contrary and lawful practice is on the Re-
spondents. In the attempt to prove a practice, the General Counsel elicited from
Miller, the secretary of the Association, testimony that many men employed in the
industry are neither members of the Union nor holders of permits. This might
suggest that the agreement is not in fact enforced. 1° But this negative aspect was
"Grove Shepherd Wilson & Krege, Inc, 109 NLRB 209
ii Similar question concerning enforcement of the agreement was indicated in the re-
sponse to the General Counsel by Carty when he stated that his Company's procedure has
been changed since amendment of the Act, which he has tried to follow by omitting any
union-shop requirement ; and, as noted supra, that the Association claims, contrary to the
Union, that employeis need not send nonunion applicants to the Union for permits. From
CARTY HEATING CORPORATION 1435
nullified when the witness later testified that he did not know whether any such
men are employed by members of the Association. At any rate, such testimony did
not prove the practice alleged.
More effective in indicating an unlawful practice is the testimony that foremen
(steamfitters in charge) are designated by the employers and are always members
of the Union. It might be argued that employers determine without reference to
union status that those whom they so designate are qualified. But the unlawful
agreement having been found, it may be inferred that, at least with respect to
their hiring if not to their further designation, the agreement is followed in viola-
tion of the Act. Here again we revert to the agreement already found; and the
remedy is no different because of the inference which we have drawn and the
practice noted. Employers can be directed not to discriminate in hiring; they
cannot be required, on this evidence, to make different designations of foremen. It
is thus clear that such testimony adds neither to the finding of violation nor to the
applicable remedy.
Much more testimony was taken on the allegation that a different agreement of
practice was maintained. With the likelihood of future reference to such testimony,
analysis here becomes necessary even if in fact that testimony adds little or nothing
to what has been noted and found in the preceding subsection on the issue of the
written agreement specifically alleged.
Whatever the restrictions on employment of men who are not members of the
Union in New York City and Nassau and Suffolk Counties (the area covered by the
written agreement and within the Union's jurisdiction), and whether or not restric-
tions are applied at job sites, little hiring is done through the Union. Job superin-
tendents maintain lists of men who have worked for them on previous jobs, and
they call men, as needed, from such lists. There is no evidence that such lists are
limited to members of the Union. Applicants also go to job sites for employment,
frequently after hearing from friends that men are needed. Usually, when it
appears that a job is available, the applicant applies to the job superintendent or
the office of the employer. Superintendents are supervisors within the meaning of
the Act, and they are not members of the Union.ii
Miller testified, as did Whittle, the superintendent of a large contractor, that the
foreman on the job (or steamfitter in charge) is designated by the employer and
is always a union member, although he need not be one Such a practice, violative
of the Act, would follow from maintenance of the restrictive employment provisions
found supra and is "reasonably contemplated" by such provisions. (We are not
bound by Miller's conclusion concerning requirement of membership.) A further
restrictive practice which might flow from the agreement and from the constitutions
of the Union and the International, foremen's hiring of union members only, 12
does not appear here since foremen on these jobs do not usually have authority to
hire. That foremen do in some cases have authority to hire does not establish a
general violative practice. Nor is it a general practice; it is rather in partial main-
tenance of the agreement found supra. Whether and when foremen, in addition to
being union members, are also shop stewards is thus of no great moment The
testimony that foremen are briefed by the Union's executive board concerning
various duties does not extend the violation already found. In fact, Tracey, the
Union's business agent at large, testified, in response to the General Counsel's
question, that foremen are not briefed concerning the right of members to work
with nonmembers.
As to whether the closed-shop practice described in section 3 13 of the Joint
Arbitration Plan is in effect, Miller further maintained that the plan itself has
not been for about 5 years despite reference to it in the agreement. He later testi-
fied that members of the Association get their own employees, the Union not
supplying them We have no proof that employment so effected follows the Joint
Arbitration Plan in practice or that these Respondents have agreed to follow section
3 of that Plan. Eller, chairman of the board of governors of the Building Trades
Employers Association, called as a witness in this connection, testified concerning
the agreement between the Association and the Union it appeared, supra, that the latter
attempts to cause and causes discrimination ; this latter testimony suggests that the Union
attempts although it may not succeed As for Carty Heating, the evidence noted, infra
in connection with Babian's discharge overcomes the general statement of compliance with
the Act
uCf United Brotherhood of Caipenters and Joiners of America, Local #517, AFL (Gil
Wyner Construction Company), 112 NLRB 714, 716.
ii Ibid
13 This section, it will be recalled, is not included in the agreement as found supra
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the handling of Jurisdictional disputes and so -called assignment of jurisdiction to
various unions. He made no reference to maintenance of any restrictive hiring
practice . Thus, to this point, finding of violation in practice depends on mainte-
nance of the agreement , supra, and that violation has already been found. In fact,
such violation is broader than the further practice which the General Counsel has
alleged since the agreement excludes permit holders entirely while the practice
alleged relegates them to an inferior position.
In further reference to a practice which would be embraced in the maintenance
of the written agreement , Whittle testified that he has never asked a man whether
he had a union card or permit . Although this tended to lessen the evidence of
violative practice under the agreement , he later testified that, when applicants have
said that they are not members of the Union , he has sent them to the Union and
had them "cleared through ," and the Union has always sent them to the job. He
testified that this has not been recent practice since he has not hired permit men
since 1954 ; but as noted supra, the earlier practice supports the finding that the
written agreement was discriminatory and was by the parties interpreted as
requiring discriminatory treatment . As for discriminatory practice on termination,
we have only Whittle's testimony , in response to the General Counsel , that permit
men are not laid off before union members in the shop , while in the field layoffs are
gradual as a job comes to a close.
On the issue of work permits ( he preferred the term referral cards ; they are in.
fact designated "identificati-on cards" ) Tracey testified that they are seldom used.
It does not -appear , although both Tracey and Carty testified in this connection,
that such cards have been employed "in practice" within the period with which we
,are here concerned except in Babian's case , infra. Babian testified concerning his
most recent card, which was not produced , and which is not to be confused with an
earlier card , which was produced . (Spur testified that no permits have been issued
"for some months." ) Business in the industry is and has been bad, and men are
readily available to employers except for work at distant sites. The testimony that
cards are issued to members and nonmembers when an employer calls for a man
and one who meets the need described is sent to the job, suggests that, when followed,
the practice has been nondiscriminatory . Such testimony stands despite the pro-
visions of the International constitution and Tracey's declaration that he abides by
the constitution . Nor would the General Counsel profit by rejection of the testi-
mony as contrary to the constitution : in such case, since the constitution is not directly
in issue, we would be left without proof of either practice or agreement among the
parties.
There are various types of work and job situations. Members of the Union gen-
erally have greater diversity of experience than has Babian , who has done little
beyond welding . Tracey testified that a card is given to a union member to guard
against a trip in vain after a request is received from an employer . Cards are not
issued to individuals who say that they have found a job . Whether such individuals,
not members of the Union and without referral cards , have been or would be denied
employment was not established ; Tracey testified to the contrary.
It further appears that such cards do not need to be and are not renewed although
the current form calls for renewal every 2 weeks, as did the earlier form, issued to
Babian in 1951 and received in evidence . Babian's testimony that his most recent
card ( he did not testify that it was periodically renewed ) was sent from one job
to another as his employment changed (he testified that he applied for a card for
the Carty job; Tracey claimed that he did not) supports Tracey's statement that an-
other referral card need not be issued when a holder completes work on one job and
goes to work on another. As for preference to members in issuance of cards , Tracey
declared such a question "hypothetical ." His intention concerning 'a situation which
has not arisen cannot establish an "unlawful practice ." Nonmembers to whom
renewal cards are issued must pay 25 cents per day for coverage under the welfare
fund. But similar payment is ,made by members of the Union. Whatever the sus-
picion concerning use of identification, referral , or permit cards which prompted
this allegation of violation , the promise of proof has not been realized.
The allegation of violation in connection with the Dierks refusal to employ Babian
is considered in the next subsection . One can only speculate whether the incom-
petency, as found infra, of the evidence to establish that specific violation was ap-
parent to the General Counsel when he argued that "Dierks was under compulsion
by virtue of these contracts and understandings and practices not to hire Babian unless
Babian was -a book man." In any event , what is incompetent as proof of a specific
violation is no more competent to prove a practice . Nor is such practice proved
against the Union by similar testimony by Babian concerning statements by other
employers.
CARTY HEATING CORPORATION 1437
I have not overlooked the testimony by Carty that he did in the B abian instance
alone send a man to the Union for a permit card. He explained that he had earlier
sought men through various sources including the Union, and that he sent Babian
there both so that he might again seek help from the Union in getting men as
needed and to avoid possible claim for payment if the Union 'sent other men as he
had requested 14 Whether at that time Carty needed men in addition to Bahian
so that his referral to the Union would have been unnecessary was not shown. Such
evidence would not warrant a finding of general unlawful practice, nor would it en-
large the violation based on the written agreement, supra.
As for the indication of a violative practice in the testimony of Berkey concerning
an incident on the Dierks Garden City job, it had previously been established that
Section 10 (b) of the Act bars any finding thereon. On the other hand, the allega-
tion of preferential practice in favor of union members over permit holders is nega-
tived by the discharge of Kleinfeld, a member, while nonmembers were retained.
(The weight lobe 'accorded this item is lessened by the reference ,to Kleinfeld as an
unsatisfactory employee.) Kleinfeld's reinstatement indicates the Union's per-
suasiveness or power generally, but it does not prove the discriminatory practice
alleged: his reinstatement was not at the expense of any of the nonmembers who
remained on the job.
Into this subsection would also come the various references and attempts at fur-
ther references to events outside the statutory period. What has been stated, supra,
concerning the use of earlier acts to explain, if necessary, more recent violations
is fully applicable to the instant issue of alleged practice. As in the Dierks situation,
infra, earlier acts may be considered to explain more recent violations. But here
was repeatedly offered testimony concerning events as far back as 1947 and 1949
without the necessary proof of recent allegedly violative occurrences which they
were to explain. To urge that ancient practices or an understanding inferred from
such practices are to be regarded as continuing and that proof thereof may be sub-
stituted for proof of acts during the statutory period is to ignore the limitation imposed
by .the Act. As pointed out at the hearing, the General Counsel cannot amend the
Act and 'inject an extraneous issue by an allegation of discrimination during the
statutory period "and prior 'thereto."
No unlawful 'agreement or violative practice has been shown beyond what has
been found, supra, in maintenance of the unlawful written agreement, and the specific
findings, infra, concerning Babian (the latter as distinguished from the general prac-
tice alleged with respect to permit holders). To support the allegation considered
in this subsection, the General 'Counsel must prove 'another agreement ('as, for ex-
ample, that excessively restrictive provisions in the Union's or International's consti-
tution, not made part of the agreement found, supra, were agreed to by the Associa-
tion or Carty Heating) or a series of unlawful acts of the order of those found against
Carty Heating and the Union, infra. Even where documents, whether a constitu-
tion or an arbitration plan, constitute a blueprint for violation of the Act, it must
be shown that they were adopted 'by agreement or in practice. Such proof was not
forthcoming, and we are left with 'only the indication of what the practice might be or
should be pursuant to such documents, not what the practice is. The General Coun-
sel is leaning 'on a weak reed when he argues that unlawful practice be found because
he "assume Cs] that Mr. Tracey's business agents 'are good business agents," and that
"they live up to the provisions of the constitution." While it appears that union
representatives claim to abide by their International and Local constitutions, which
include restrictive provisions beyond those permitted by the Act, the various con-
stitutions are not themselves directly in issue, as we have noted, and 'there is no
evidence of general practice pursuant to such provisions. This lengthy subsection
and the longer testimony concerning the issue raised thus come to naught. (The
process of finding that a thing does not exist is frequently lengthier than recognition
where it does) The evil of repetition in the complaint and at the hearing has com-
pelled what should be unnecessary extension of this report.
ffi Carty testified that he had been badgering the Union (and the Association) in his
need for men, and that he had been told that if he got a man, the Union would issue a
permit Expressed willingness to issue a permit may suggest, but does not prove existence
of, an agreement or practice Actually, the Union iefused to issue a permit to Babian,
who went to work without one The foremen and shop steward on the job insisted that
he get one, but made no furthei objection when Bahian again told him that he had been
refused it card It might be iiigaed that Babian's employment theie foi 6 weeks without
a card disproves the alleged practice, conversely, that his dischai go is one -indication
that the practice as followed That discharge is the subject of other allegations and other
findings, infi a .
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Bahian-Dierks
Although the allegation concerning Babian's discharge by Dierks was stricken
as outside the statutory period, reference to the discharge and the circumstances' sur-
rounding it was permitted to explain the alleged later refusals by Dierks to employ
Babian. But Babian's testimony concerning his conversations with Dierks with re-
spect to later employment on other jobs, as with respect to the earlier discharge from
the Garden City project, and his recital of Dierks' statements concerning the Union's
attitude are not probative against the Union, against which alone a charge has been
filed and complaint made in this connection.
Of competent evidence, we have only Babian's testimony of 'a conversation with
the shop steward before the discharge, and further that, after telling Donnelly,
secretary-treasurer -of the Union, that Dierks had work for him, he asked for a permit
and Donnelly refused it. But Babian testified that he spoke to Dierks on the day of
his layoff -or discharge, October 27, 1954, that Dierks told him to see Donnelly, and,
as the question was put to him, that he went to see Donnelly "after [he] left Mr.
Dierks." It thus appears that this sole evidence of union causation cannot be the
basis for finding a violation. There is no evidence of acts by the Union or its repre-
sentatives within the statutory period, standing alone or explained by this testimony
of the earlier act or statement. The allegation of violation by the Union in connec-
tion with Dierks has not been sustained.
D. Babian-Carty
Babian is a member of the Metal Trades Branch of Local 638. Despite his testi-
mony that he had done fitting and welding, he admittedly had limited experience as a
steamfitter: he is primarily a welder, qualified and certified. It has not been urged
that he should have been retained by Carty Heating as a steamfitter or later hired
in that capacity.
Having learned of a job opening at Carty Heating, Babian got the company's name
and telephone number from his own Metal Trades Branch. He spoke with Carty
over the telephone on or about May 13, 1955, identified himself as a certified welder,
and applied for a job as welder. Carty (his explanation has been noted supra) told
him to go to the Union for a permit card, which would be waiting for him; but a
card was not thereafter issued to Babian, who nevertheless started to work for
Carty on May 16. Additional details concerning Babian 's attempts to obtain a card
and his employment without one are noted, supra, as a footnote to the question
Whether in practice employees are required to be members of the Union or to hold
permit cards.
Although the general requirement of a card has not been shown, subsequent events
indicate that Babian was discriminated against and replaced by a union member.
On Wednesday, June 22, Wynne, the foreman and shop steward, left a message for
Carty that the following day he bring out to the job pay for both Babian and
Kleinfeld 15 for June 23. As was the practice, Carty brought out on June 23 the
pay for the payroll week ending June 22, and Wynne paid Babian , saying nothing
then about laying him off. Early that morning, Wynne introduced to Carty 2 new
men, union members at least 1 of whom was a welder, who he said had been sent
out by Tracey. (Babian had seen them on the job site the day before.) To Carty
who testified that Wynne did not say he had hired them (he denied that Wynne had
such authority), "that mean[t] . . . these two fellows were going to work on
[this] job," and they did start that day. He did not tell Wynne not to hire them.
Before he left, he gave Wynne Babian's and Kleinfeld's pay for that day. In the
afternoon, Wynne gave the latter two the day's pay and said that Carty had told
him to lay them off. It is clear that welding work remained to be done; nor is it
claimed that Babian was discharged because of lack of work.
Carty cited five reasons for Babian's discharge. He referred first to Babian's
showing him a photograph which he had taken on a previous job despite a regulation
forbidding the taking of photographs in that area. The second in the series was
Babian's asking him during lunchtime one day how much he paid for a certain type
of wrench. Babian told him that he knew of a surplus goods store where such
wrenches could be gotten at a marked reduction. There was no suggestion of
stolen merchandise or other illegality; Carty resented the question concerning what
he paid as presumptuous even if well intended. The next circumstance which he
cited was his expectation that welding work would be completed in about a week
(although he thereafter changed his plans to include a greater amount of welding).
is Fui ther consideration of Iilemfeld's discharge and reinstatement is unnecessary for
determination of the issue of discrimination against Bahian.
CARTY HEATING CORPORATION 1439
The "unpleasant" nature of this item was not attributable to Babian. But the valid-
ity of such a reason, if reason it was, is clear.
As the fourth reason, Carty cited an occasion when two large boilers having been
damaged during delivery to the job site, Babian remarked on their condition to
Wynne in the presence or hearing of army inspectors. Wynne told Babian to go back
to his welding. When Carty learned of this incident, he told Wynne to tell Babian
to mind his own business or he would be laid off. Thereupon, the day after Babian
made those remarks, Wynne told him to mind his own business. The boilers were
thereafter rejected by the Government. Carty replaced them and is now attempting
by suit to recover damages from the rigger for the loss sustained. He resented
Babian's talking to Wynne about the boilers. While it was brought out that Babian
would stand on the boilers to install pipe, he would not do work on or with the
boilers: in speaking as he did, he did not "mind his own business." As the last
reason, Carty mentioned that he had noticed that Babian was acting as a strawboss
and that the other men resented it; Wynne said that he was talking to the men
instead of working.
The various reasons cited by Carty from his personal resentment or dislike to
indication of untrustworthiness and the suggestion of unsatisfactory performance
(although there were no complaints concerning the quality of Babian's work), may
have warranted Babian's discharge. The issue, however, is not whether Carty Heat-
ing could have discharged Babian for these reasons. They were not in fact the
reason for the discharge.
Carty declared that, although he had been dissatisfied with Babian from the start,
he had needed men and therefore retained him. On the night of June 22, and only
after he had received Wynne's message which indicated that Babian was to be dis-
charged, did he decide to effect the discharge. He testified that, although Wynne had
no authority to discharge or effectively to recommend discharges, Wynne "brought
it to a head." Carty "approved" Babian's layoff because of the "series of unpleasant
circumstances," noted supra, as his five reasons But he could not say whether he
would have discharged Babian on that day "if it were up to" him.
However Wynne's authority or lack of it was described, his authoritative role in
Babian's discharge is clear as he provided replacement and left word for Carty to
bring the pay for Babian's last day of work. (Tracey actually made the decision for
Carty when he sent the two new men to the job, where Wynne in effect hired them,
as Carty understood what "that mean[t]," supra.) As union member and shop
steward, Wynne acted for the Union, which thus attempted and did cause Carty
to act.is
Clearly, then, Babian was not discharged for the reasons listed by Carty. If these
were considered at all-and the evidence is not convincing that they were considered
by Carty on the night of June 22, when he decided to discharge Babian-it is clear
that Babian's lack of membership in the Union and Wynne's message weighed more
heavily in the decision to fire Babian than did dissatisfaction with his personality or
performance 17
Carty testified, in response to the General Counsel's question, that he "would put
up with a great deal of misconduct" in May, when men were needed, but not on
June 20, when they were available. But with respect to availability of other men in
contrast with the need which he cited, he did not know, when he decided to discharge
Babian, that the new men would be on the site the next morning. Further, his
reason for earlier retaining Babian persisted: he still needed men (despite his testi-
mony that little work remained) even to the extent that he hired 2 new ones, 1 of
them or another employee being assigned to Babian's work. Nor did Carty make
a quite appropriate comparison when, in explaining why he "overlooked many inci-
dents," he contrasted his need for men in May with the situation on June 20. Of
the reasons which he cited, the boiler incident was portrayed as the most serious and
costly. Yet this occurred on June 20, and was "overlooked." The most costly and
"unpleasant" reason did not prompt Babian's discharge; Tracey and Wynne did.
Could there be doubt of the Union's power not only to attempt but actually to
cause Babian's discharge, it would be dispelled by the further fact that, after it caused
Carty Heating to discharge Kleinfeld, it caused his reinstatement, noted supra,
although he had been, since his first day there, the poorest worker on the job.
The Board has found violation of the Act in cases of unlawful pressure by a
union on an employer to discriminate against employees. Here the Union did more
10 United Brotherhood of Carpenters and Joiners of America, Local #517, AFL (Gil
Wyner Construction Company), supra.
14 N. L It. B. v. Whiten Machine Works, 204 F. 2d 883, 885 (C A 1) ; cf. N. L. R B v.
Coats ct Clark, Inc , 231 F 2d 567 (C. A. 5)
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than persuade or threaten: it directed termination and provided replacements in
anticipation of such termination; and the employer discriminatorily acceded to the
Union's demand and action. By such acts, Carty Heating and the Union respectively
violated Section 8 (a) (1) and (3) and Section 8 (b) (1) (A) and (2) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section II, above, occurring in con-
nection with the operations of the members of the Association described in section 1,
above, have a close , intimate , and substantial relation to trade, traffic , and commerce
among the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
IV. THE REMEDY
Having found that the Respondents have engaged in and are engaging in certain
unfair labor practices affecting commerce, I shall recommend that they cease and
desist therefrom and take certain affirmative action to effectuate the policies of
the Act.
It has been found that the Respondents respectively violated Section 8 (a) (1)
and (3) and Section 8 (b) (1) (A) and (2) of the Act by maintaining and enforcing
a collective-bargaining agreement which includes illegal benefit and employment
provisions. I shall therefore recommend that they cease and desist therefrom
It has been further found that Carty Heating, by discharging Babian, discrim-
inated against him in regard to his hire and tenure of employment in violation of
Section 8 (a) (3) and (1) of the Act; and that the Union caused Carty Heating so
to discriminate, and itself restrained and coerced employees in violation of Section
8 (b) (2) and (1) (A) of the Act. I shall therefore further recommend that Carty
Heating and the Union, jointly and severally, make Babian whole for any loss of
pay he may have suffered by reason of the discriminatory action aforementioned by
payment to him of a sum of money equal to that which he would normally have
earned less his net earnings,18 which sum shall be computed 19 on a quarterly basis
from June 23, 1955, until the date of completion of the work which he had been
performing. There shall be deducted from the amount payable to Babian such
sums as would normally have been deducted from his wages for deposit with State
and Federal agencies on account of social security and other similar benefits. There
shall be paid to the appropriate State and Federal agencies to the credit of Babian
and Carty Heating, a sum of money equal to the amount which, absent discrimina-
tion, would have been deposited to such credit by Carty Heating, either as a tax
upon Carty Heating or on account of deductions made by it from Babian's wages,
on account of such social security or other similar benefits.20 I shall further recom-
mend that the Board order Carty Heating to make available to the Board upon
request payroll and other records to facilitate the checking of the amount of back
pay due.21
In addition to the notices to be posted by each of the Respondents, but because
we have no jurisdiction over members of the Association other than Carty Heating,
I shall further recommend that the Association send copies of its notice to such
other members and request them to post the same.
The violations of the Act found herein are persuasively related to other unfair
labor practices proscribed by the Act, and the danger of their commission in the
future is to be anticipated from the conduct of the Respondents in the past. The
preventive purposes of the Act will be thwarted unless the order is coextensive with
the threat In order, therefore, to make more effective the interdependent guar-
antees of Section 7, to prevent a recurrence of unfair labor practices, and thereby
minimize industrial strife which burdens and obstructs commerce, and thus effectuate
the policies of the Act, I shall further recommend that the Respondents be ordered
to cease and desist from infringing in any other manner upon the rights guaranteed
in Section 7 of the Act.
For the reasons stated in the subsection entitled "Babian-Dierks," I shall recom-
mend that the complaint be dismissed insofar as it alleges that the Union caused
Dierks to refuse discriminatorily to employ or reinstate Babian.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
18 Crossett. Lumber Company, 8 NLRB 440 See also Republic Steel Corporation V.
N L R I3, 311U S 7.
'OF TV Woolworth Company, 90 NLRB 289 291-294
a' Pen and Pencil Workers Union, Local 19593, AFL (Becker), 91 NLRB 883
21 F. W Woolworth Company, supra , at 294.
OLIN MATHIESON CHEMICAL CORPORATION 1441
CONCLUSIONS OF LAW
1. Steamfitters Branch, Enterprise Association of Pipe Fitters and Apprentices
of Greater New York, Nassau and Suffolk Counties and Vicinity, Local Union 638
of the United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. Mechanical Contractors Association of New York, Inc., is an employer within
the meaning of Section 2 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employment and terms
and conditions of employment of its employees, thereby encouraging membership
in labor organizations, Carty Heating Corporation has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
4. By discriminating in regard to the hire and tenure of employment and terms
and conditions of employment of employees of its members, thereby encouraging
membership in labor organizations, Mechanical Contractors Association of New
York, Inc., has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (3) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Carty Heating has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
6. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Association has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
7. By causing Carty Heating and the Association and its members to discriminate
in regard to hire and tenure of employment and terms and conditions of employ-
ment, in violation of Section 8 (a) (3) of the Act, the Union has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of
the Act.
8. By restraining and coercing employees in the exercise of rights guaranteed in
Section 7 of the Act, the Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (1) (A) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2 (6) and (7) of the Act.
10. The Union has not engaged in other unfair labor practices within the meaning
of the Act with respect to Dierks Heating Co., Inc.
[Recommendations omitted from publication.]
Olin Mathieson Chemical Corporation , Olin Works and Interna-
tional Union of Operating Engineers , AFL-CIO, Petitioner
Olin Mathieson Chemical Corporation , Olin Works and Plumbers
and Steam - Fitters Local Union No. 157, United Association of
Journeymen and Apprentices of the Plumbing & Pipe Fitting
Industry of the United States and Canada, AFL-CIO, Peti-
tioner. Cases Nos. 35-RC-1390 and 35-RC-1411. April 30, 1957
DECISION, ORDER, AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing I was held before
John W. Hines, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
1 We find no merit in the contention of Petitioner in Case No . 35-RC-1411 that it was
prejudiced by the consolidation of its petition with that of the Operating Engineers, as
both petitions involved the same group of employees.
117 NLRB No. 189.
42 3 7 84-5 7-vol 117-92