Essex County and Vicinity District Council of CarpentersDownload PDFNational Labor Relations Board - Board DecisionsAug 6, 195195 N.L.R.B. 969 (N.L.R.B. 1951) Copy Citation ESSEX COUNTY, VICINITY DIST . COUNCIL OF CARPENTERS, ETC . 969 ESSEX COUNTY AND VICINITY DISTRICT COUNCIL OF CARPENTERS, AFL, AND PAINTERS COUNCIL NUMBER 10 , AFL and FAIRMOUNT CON- STRUCTION COMPANY. Cases Nos. 2-CB-94, 2-CB--97, and 2-CB- 112., August6,1951 Decision and Order On February 24, 1950, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceeding, find- ing that the Respondent Carpenters had engaged in certain unfair labor practices. in violation of Section 8 (b) (1) '(A), 8 (b) (2),. and 8 (b) (3) .of the Act and recommending that it cease and desist therefrom.and take certain affirmative action; as set forth in the copy of the Intermediate Report attached hereto.. Thereafter the Re- spondent Carpenters filed exceptions to the Intermediate Report.. On September 11, 1950, the Board reopened the record and remanded the case to the Regional Director for. the Second Region for the lim- ited purpose of receiving evidence as to the purchases of the Em- ployer and its subcontractors. and.suppliers during the year 1949. Thereafter,. the parties filed with the Board a stipulation dated Feb- ruary 19, 1951, in which they agreed upon certain facts concerning these 1949 purchases but reserved their right to file exceptions and briefs before the Board. The stipulation was referred to the Trial Examiner. On April 4, 1951, Trial Examiner Scharnikow issued a. Supplemental Intermediate Report, attached hereto, recommending, that the complaint be dismissed on, the ground the Employer's opera- tions do not meet the criteria established by the Board for the asser-- tion of jurisdiction., The Employer thereupon filed exceptions to the Supplemental Intermediate Report with a supporting brief while, the Carpenters filed. a brief in support of the Supplemental Inter- mediate Report. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The- rulings are hereby affirmed. The Board has considered the Interme- diate Report, the Supplemental Intermediate Report, the exceptions and briefs filed to both Reports, and the entire record in the case. The Board hereby adopts the findings, but rejects the conclusions of the Supplemental Intermediate Report for the reasons noted herein- after. The Board further adopts the findings, conclusions, and rec- ommendations of the Intermediate Report with the additions and modifications noted below : 1. On the entire record, the Board finds that Fairmount Contruc- tion Company is engaged in commerce within the meaning of the. Act_ 95 NLRB No. 113. '970 - DECISIONS OF; NATIONAL LABOR RELATIONS BOARD In the Supplemental Intermediate Report, the Trial Examiner con- -eluded that the direct and' indirect inflow, of . materials to the Fair- mount Construction Company's Ivy Hill project did not, either sep- arately or in the combination of their percentages, satisfy the Board's :minimum policy requirements for the exercise of its jurisdiction. We -do not agree. The Ivy Hill project, as originally contemplated, was to consist of the construction of 600 dwelling units, primarily 2-family homes, for an estimated total value of approximately $6,000,000. Less 'than one-fourth of these units had been completed by May 1949 when the original hearing in this case commenced as the project was inter= :tupted in the middle of May 1948, by a strike which is the subject of -the unfair labor practice charges in this case. Direct inflow of mate- rials to the project from sources outside. the State of New Jersey amounted, in value, to approximately $72,724 in 1947, $ 289,656 in 1948, and $40,763 in 1949.1 During the period between Match 1947 and May 1949, Fairmount and. its subcontractors and suppliers purr chased from dealers and suppliers located within the State of New Jersey. goods originating outside that State,' which amounted' to ap- .proximately $550,000 in value and, in the year 1949 alone, to $190,000 a The Trial Examiner, in the Supplemental Intermediate Report, was correct in the finding that the direct and indirect inflow of goods to the Fairmount Construction Company and the Ivy Hill project in no' -yearly period equaled the minimum amounts set by the Board as '-standards for the assertion of jurisdiction on the basis of inflow .3 In the absence of other considerations, the conclusion reached by the 'Trial Examiner that the complaint should therefore be dismissed is correct. The Board, however, in enunciating the standards by which it.would determine whether the policies of the Act would be effectu- ated by asserting jurisdiction, did not intend that the criteria which were adopted must be satisfied in the most strict and literal sense. 1 The dollar valuations of direct inflow for the years 1948 and 1949 are herein given as found by the Trial Examiner in the Supplemental Intermediate Report. The Trial Examiner; however, erred in that Report in the statement that no computation was available for such inflow during the year 1947 . The figure for that year is given as set forth in the record of the hearing in this case. 2 The dollar valuation of goods comprising indirect inflow - in 1949 appears herein as found by the Trial Examiner in the Supplemental Intermediate Report. No precise computation is available from the record as to the amount of annual indirect inflow .for the period from March 1947, when the project started, to May 1949, when the hearing was held. However , as found by the Trial Examiner - in the Intermediate Report, Fair- mount, itself , purchased $ 449,155 of materials in that period from local suppliers, who, in turn, received the goods from points outside the State of New Jersey. The record also shows that Fairmount 's subcontractors , in that period , purchased over $100,000 in the same manner. 3See The Rutledge Paper Products , Inc., 91 NLRB 625; Dorn's House of Miraoles, Inc., 91 NLRB 632; and Federal Dairy Co., Inc., 91 NLRB 638, where the Board determined that it would exercise jurisdiction over enterprises whose direct inflow annually approxi., mated $500,000 or whose indirect inflow approximated $ 1,000,000 or where the employer's indirect and direct inflow as percentages of the minimum requirements together are equivalent to 100 percent. - ESSEX COUNTY, VICINITY DIST. COUNCIL OF CARPENTERS , ETC. 971 Thus, the Board has exercised jurisdiction where the record, of neces- sity, lacked information as to the annual operations of a new em- ployer, but where the available figures for a shorter period could be- projected. in such manner as to create "a reasonable expectation" that the yearly minima would be met in the passage of time.' In the instant case, the record clearly shows that the operations of Fairmount at the' Ivy Hill project were severely curtailed by the, strike which became the subject of the unfair labor practice charges now before the Board. If, absent the occurrence of this strike, the operations of Fairmount would have met the requirements set forth- by the Board for asserting jurisdiction, a dismissal for want of juris- diction would be self-defeating. In that instance the Board would- be deprived of jurisdiction to adjudicate and correct an alleged un- fair labor practice by the very conduct which is the subject of the- complaint. It thus becomes essential to detern;ine, not alone what the operations of Fairmount were during the period in question, but what those operations would have been but for the strike. It is clear that there is no 'method by which the operations and flow of commerce absent the strike can be precisely measured. However, the Board considers the sharp decline in the purchases of Fairmount during: 1949 as indicating that the 1948 operations of that company would- have been appreciably higher had not the strike occurred .5 As noted. ,previously, during the year 1948, Fairmount received materials. amounting in value to $289,656 in direct inflow and an undetermined percentage of $550,000 in indirect inflow. If, as is an inescapable con- clusion from the record, these purchases were for the most part made- before the strike commenced in May of that year, it is a reasonable- conclusion that the operations of Fairmount in 1948 would have met or surpassed the minimum inflow requirements' had not the strike- taken places Accordingly, the BBoard finds that it would effectuate, the policies of the Act to. assert jurisdiction over the operations of- Fairmount Construction Company. 2. In the Intermediate Report, the Trial Examiner found, and we- :agree, that the Respondent Carpenters violated' Section 8 (b) (1) (a) by restraining and coercing employees of Fairmount Construction Company and of other employers engaged in the delivery of materials 4 See General Seat and Back Mfg. Corp ., 93 NLRB 1511. 6 Thus, direct inflow purchases amounted to only $40 ,000 in 1949 after totaling $289,000, in 1948 and $72,000 for the 9 months of 1947 the project was in operation. While statistics are not available in yearly breakdowns for the indirect inflow, it is logical to- assume that such purchases also declined sharply. 6 Even with curtailed operations in 1948, the direct inflow of Fairmount constituted 57. percent of the Board 's minimum of $500,000 in that category and the indirect inflow 'constituted an undetermined , but appreciable .petcentage of the Board's alternate ,minimum, of $1,000,000 for indirect inflow. As the . strike-free operations of Fairmount constituted only, 5 months of the calendar year of 1948, we conclude that these percentages . would, have totaled more than the 100 percent required , had operations been normal for the year.. 972 ' -DECISIONS.DECISIONS *OF NATIONAL. LABOR RELATIONS BOARD 4{ , to the Ivy Hill project, in the exercise of the rights guaranteed in Section 7 of the Act. - In so. finding, however, we do not pass upon the question of whether individuals engaged in picketing activities be- come, per se, agents of the sponsoring labor organization. In 'this case, the responsibility of the Respondent Carpenters for the incidents which we find to have been violations of Section 8 (b) (1) (A) stems not alone from the control and guidance of the pickets exercised by the business agents and the presence of the latter at many of the un- lawful acts, but also from the pattern of violent and coercive conduct set by the actions of the business agents themselves .7 3. We also find as did the Trial Examiner in the Intermediate Re- -port that the Respondent Carpenters violated Section 8 (b) (2) by demand for and insistence upon a contract incorporating an illegal closed-shop provision coupled with a threat of strike and a resulting work stoppage in support of the demand. By the foregoing action, it is clear that the Respondent Carpenters also violated Section 8 (b) (3) by a refusal to bargain collectively with the Employer. 4. The Respondent Carpenters at the hearing and in exceptions filed to the Intermediate Report contends that the Board and the Gen- eral Counsel either waived the "right" to- proceed against the Re- spondent Carpenters or condoned the violations found to have been committed, or estopped this agency from continuing the action against the Respondent Carpenters by approval of settlement stipulations with the Essex County Building and Construction Trades Council and Painters Council Number 10, AFL." We find no merit in these con- tentions. Conduct alleged to be violative of the National Labor Re- lations Act is not condoned or waived as to, nor is the Board estopped from proceeding on a complaint against, organizations or individuals merely because a settlement agreement within the purview of the :statute has been reached with others. who also engaged in such con- duct. We can perceive no prejudice attaching to the Respondent Carpenters from the action of the General Counsel in severing that part of the complaint alleging unfair labor practices on the part of 'the Painters Council. However, we do not adopt the Trial Examiner's .rulings as to the respective powers of the Board and the General Coun- sel following the issuance of a complaint and the opening of a hear- ing thereon.9 ° See International Longshoremen 's and Warehousemen's Union ( Sunset Line and Twine 'Company ), 79 NLRB 1487. IIt should be noted that the Board does not, in the absence of provision for a Board order, "approve " settlement stipulations made before a complaint has issued and no -such approval was tendered to the settlement agreements executed herein. 9 See United Aircraft Corporation, Pratt & Whitney Aircraft Division , 91 NLRB 215. In that case , on appeal from a ruling of Trial Examiner denying a request by the General Counsel to dismiss a complaint prior to issuance of .the Intermediate Report, the Board 'held that nothing contained in Section 3 (d) of the Act limits the authority of the Trial .`Examiner, under such circumstances , to deny a requested dismissal. ESSEX .CO.UN(t ,'V+ZCIIV:L'P;Y DIST. COTJNICLL`-:OF CARPENTERS, ETC. 973 Order Upon the entire record ' in the case , and..pqrsuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent , Essex County and Vicinity District Council of Carpenters , AFL, their officers, and agents shall : 1. Cease- and desist from; (a) Threatening to take strike action , or directing , instigating, or encouraging employees to engage in or to threaten to engage in, strike action, or approving or ratifying strike action taken by employees, for the purpose of requiring the Employer to violate Section 8 ( a) (3) of the Act by discriminating with respect to the employment or condi- tions of employment of any employees. (b) In any other manner causing or attempting to cause the Em- ployer to discriminate against employees in violation of Section 8 (a) (3) of the Act. (c) Refusing to bargain collectively as, and so long as it is , the ex- clusive representative , of the employees in the unit herein found to be appropriate , either by specific refusal or insistence upon a contract requiring Fairmount Construction . Company to discriminate against employees and applicants for employment in violation of Section 8 (a) (3) of the Act. (d) Restraining or coercing employees of Fairmount Construction Company or employees of other employers engaged in the delivery of materials , to the Ivy Hill project of Fairmount Construction Company, in the exercise of the rights guaranteed in Section 7 of the Act, includ- ing the right to refrain from self-organization , from joining or assist- ing Essex County and Vicinity District Council of Carpenters, AFL, and from engaging in concerted activities for the purposes of collec- tive bargaining. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request , bargain collectively with Fairmount Construc- tion Company, as, and - so long as it is , the exclusive representative of the employees in the unit herein found to be appropriate, and if an understanding is reached , embody such understanding in a signed agreement. (b) Post immediately at conspicuous places at the business office of the Essex County and Vicinity District Council of Carpenters, AFL, and at all other places where notices and communications to members are customarily posted , copies of the notice attached hereto and marked "Appendix A," 10 said copies to be furnished by the Regional Director io In the event that this Order is enforced by decree of a United States Court of Appeals', there shall be inserted before the words, "A Decision and Order" the words, "A Decree of (the !United States Court of Appeals Enforcing." 974 DECISIONS OF. NATIONAL LABOR RELATIONS $OARI7 for the Second Region. This notice shall be signed by a duly author ized officer of the Essex County and Vicinity District Council of Car- penters, AFL, and shall remain so posted and maintained for a -period. of sixty (60) days. Reasonable steps shall be taken by the Respondent- Carpenters:..to insure that said. notices are not altered, defaced,- or covered by any other material. (c) Mail to the Regional Director. for the Second Region signed copies of the notice, attached hereto as Appendix A, for posting, the Employer willing, on the bulletin boards and all other places where notices to employees are customarily posted by the Employer. The notice shall be posted on the. bulletin boards of the Employer and main- tained thereon for a period of sixty (60) consecutive days thereafter.. Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being signed as provided in paragraph 2 (b) of this Order, be forthwith returned to the Regional Director for said posting. - (d) Notify the Regional. Director of the Second Region in writing within ten (10) days.from the receipt of this Order, what steps the Respondent Carpenters has taken to comply herewith.' MEMBER STYLES took no'part in the consideration of the above= .Decision and Order. Appendix A NOTICE TO ALL OFFICERS, REPRESENTATIVES , AGENTS, AND MEMBERS O' THE ESSEX COUNTY AND VICINITY DISTRICT COUNCIL OF CARPENTERS, AFL Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we. hereby notify you that : WE WILL NOT threaten to take strike action, or direct, instigate, or encourage employees to engage in or to threaten to engage in, strike action, or ratify strike action taken by employees, for the purpose of requiring the Employer to violate Section 8 (a) (3) of the Act by discriminating with respect to the employment or conditions of employment of any employee. WE WILL NOT in any other manner cause or attempt to cause the Employer to discriminate against employees in violation of Section 8 (a) (3) of the Act. WE WILL, upon request, bargain collectively in good faith as,, and so long as we are, the exclusive representatives- of all em- ployees in the bargaining unit consisting of all carpenters,, weatherstrippers, floorlayers, and linoleum layers at the Ivy Mill project of FAIRMOUNT CONSTRUCTION COMPANY, with respect, to a ESSEX COUNTY , VICINITY DIST. COUNCIL OF CARPENTERS, ETC. 975 rates of pay, wages, hours of employment, and other conditions of employment, and., if an understanding is reached; we will em- body such understanding in a signed agreement. WE WILL NOT restrain or coerce employees of FAIRMOUNT CoN- 'STRUCTION COMPANY or employees of other employers delivering materials to the Ivy Hill project of the FAIRMOUNT CONSTRUCTION COMPANY, in the exercise. of the rights guaranteed in Section 7 'of the National Labor Relations Act, including the right to re- ' fraiu from self-organization, from- joining or assisting Essex County and Vicinity District Council of Carpenters, AFL, or any of its affiliates, and.from engaging in concerted activities for the purpose of collective bargaining. ESSEx COUNTY AND VICINITY DISTRICT COUNCIL OF CARPENTERS, AFL, Labor Organization. By ---------------- --------------------- --- (Representative) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by other material. Supplemental Intermediate Report and Recommendations On February 24, 1950, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner , issued his Intermediate Report in the above -entitled .proceedings , finding that the Respondent Carpenters had engaged in unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) and Section 8 (b) (1) (A ), (2), and ( 3) of the National Labor Relations Act, herein called the Act. On September 11, 1950, the National Labor Relations Board , herein called the Board , issued an order reopening the record in the proceeding for the sole and limited purpose of receiving evidence , by stipulation or further hearing, as to the Fairmount Construction Company's and its subcontractors ' and suppliers' .purchases of materials for the Ivy Hill, New Jersey; project during the calendar .year 1949, with particular reference to the amount of such materials originating outside the State of New Jersey. On February 19, 1951, pursuant to the aforesaid order , the General Counsel, counsel or the Respondent Carpenters , and counsel for Fairmount Construction ,Company signed such a stipulation and on February 20, 1951 , filed it with the Board. On March 5 , 1951, the Board issued a further order referring the aforesaid :stipulation to the undersigned for the purpose of issuing a Supplemental Inter- mediate Report containing findings of fact and conclusions of law regarding the operations of Fairmount Construction Company and their effect upon com- imerce :within the meaning of Section 2 (6) and ( 7) of the Act. Copies of the said, order were duly served upon the parties on March 5, 1951 . No briefs, how- ever , have been received by the undersigned. Upon the stipulation referred to him by the Board , and upon consideration ,also of the relevant portions of the previous ' record to which the stipulation ':makes reference the undersigned makes the following 976 DECISIONS OF' NATIONAL' LABOR RELATIONS BOARD FINDINGS OF FACT, CONCLUSIONS, AND RECOMMENDATION The stipulation referred by the Board to the undersigned provides : 2. For the purpose of the remand proceedings and in lieu of the formal. hearing of the issue raised by the Board in its remand order of September 11, 1950, the following facts are hereby stipulated and agreed upon by the respective parties to this proceeding: a. During the calendar year 1949, the Fairmount Construction Com- pany purchased building materials valued at $40,763.70 which were- shipped directly to said Fairmount Construction Company's Ivy Hill project at Ivy Hill, N. J., from points located outside the State of New- Jersey. b. During the calendar year 1949, said Fairmount Construction Com- pany, its sub-contractors and suppliers purchased building materials valued at $253,364.15 for the Ivy Hill project, from building material dealers and suppliers located within the State of New Jersey, approxi mately 75 percent of which originated from points located outside New Jersey. 3. General Counsel's exhibit 2 heretofore introduced into evidence at. the hearing held in these proceedings showing the purchases of building materials by said Fairmount Company, directly from sources located outside of State of New Jersey during the year 1949, as totaling $145,448.00 be and the same is hereby corrected to read $40,763.70. The amount of direct pur- chases by said Fairmount Construction Company for the calendar year 1948, also appearing on said exhibit as totaling $184,972.00 be and the same is hereby corrected to read $289,656.30. Upon the basis of this stipulation, the undersigned finds that during the calendar year 1949, the direct inflow of materials to. Fairmount at its Ivy Hill project from points located outside the State amounted to $40,763.70 and that during the same year the indirect inflow to Fairmount, its subcontractors, and: suppliers amounted to $190,023.10. Since these amounts of direct and indirect. inflow for 1949 do not, either separately or in the combination of their per- centages, satisfy the minfma of the Board's recently established requirements. for the exercise of its jurisdiction as a matter of policy,' the undersigned rec-- •ommends that the complaint be dismissed .2 Intermediate Report and Recommended Order STATEMENT OF THE CASE' The above-entitled cases were initiated by charges filed by Fairmount Construe- . •tion Company (herein called Fairmount), against Essex County and Vicinity District Council of Carpenters, A. F. of L. (herein called the Carpenters), and Painters Council Number 10, A. F. of L. (herein called the Painters). ' Merrill Construction Co., 92 NLRB 93; Rutledge Paper Products, Inc., 91 NLRB 625;: Dorn.'s House of Miracles, Inc., 91 NLRB 632; Federal Dairy Co., Inc., 91 NLRB 638;: The Plumbing Contractors Association of Baltimore, Maryland, Inc., 93 NLRB 1081.. .2 The undersigned believes that the Board's order reopening the record limits his inquiry and consideration to the interstate direct and indirect inflow of materials to the Ivy Hilt project during the year 1949 . However, even were he permitted-to consider the inflow to Fairmount for other years, the undersigned would still'', be unable, to recommend that the Board assert jurisdiction . For neither the original record nor the- supplementing' stipulation shows, or enables a computation of,' the extent of direct or,sindirect Inflow for the year 1947 and, so far as 1948 is concerned , only the corrected, and insufficient figure of $289,656.30 for direct inflow is furnished by the stipulation,,,referred to the undersigned by the Board. ESSEX COUNTY, VICINITY DIST. COUNCIL OF CARPENTERS , ETC. X977 Fairmount's charge in Case No. 2-CB-97, which was filed and served on June 28, 1948, and never amended, was directed solely against the Carpenters and alleged the commission of unfair labor practices, by the Carpenters within the meaning of Section 8 (b) (3) of the National Labor Relations Act' (herein called the Act). Fairmount's first amended and final charges in Cases Nos- 2-CB-94 and 2-CB-112 were filed on October 5, 1948, were served on October- 6, 1948, and were directed against the Carpenters, the Essex County Building and Construction Trades Council (herein called the Building Trades Council), and 21 affiliates of. the Building Trades Council, including the Painters.' In Case No- 2-CB-94, the amended charge alleged the commission by these labor organiza- tions of unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act ; in Case No. 2-CB-112, the amended charge alleged the commission by these labor organizations of unfair labor practices within the meaning of Section 8 (b) (2) of the Act. On January 17, 1949, the Regional Director for the Second Region (New York, New York), acting for the General Counsel of the National Labor Relations Board,' approved a "settlement stipulation" previously executed by the Building Trades Council and the.repeenttive of the General Counsel entrusted with the handling of the cases. By this "settlement stipulation," the Building Trades Council on behalf of itself and all of its affiliates who were named in the charges filed in Cases Nos. 2-CB-94 and 2-CB-112, except the Painters, expressly denied 'the commission of any unfair labor practices, but agreed, nevertheless, not to commit any of the unfair labor practices charged against them, to post notices to this effect at the business offices of the Building-Trades Council and its affiliates, and also to provide similar. signed notices for posting at the building project of Fairmount and the business premises of certain companies doing business with Fairmount. The Regional Director, in turn,.agreed "upon the basis of the agree- ment," to "decline to issue a complaint in the above cases against said Essex County Building and Construction Trades Council and the affiliates" on. whose behalf the Building Trades Council entered the "settlement stipulation." A "settlement stipulation" with identical terms was offered at the same time to the Carpenters but the Carpenters refused to accept it.4 On March 21, 1949, the General Counsel by the Regional Director for the Second Region, issued an order consolidating Cases Nos. 2-CB-94, 97 and 112,' and a. consolidated complaint against the Carpenters and the Painters, alleging (1) that the Carpenters and the Painters had engaged in, and were engaging in, unfair labor practices affecting commerce within the meaning of Section 8 (b) (1) (A) and Section 2 (6) and (7) of the Act, and (2) that the Carpenters had also, engaged and was engaging in, unfair labor pra;gtices affecting commerce within the meaning of Section 8 (b) (2) and (3) and Section 2.(6) and (7) of the Act.' Copies of the charges, amended charges, the order consolidating the cases, the 161 Stat. 136. 2 The Painters, but not the Carpenters, was a member of the Building Trades Council. 8 The General Counsel and the staff attorney appearing for him at the hearing are. herein referred to as the General Counsel ; the National Labor Relations Board is referred to as the Board. ' The record is silent as to whether or not the Painters, though a member of the. Building Trades Council, specifically rejected the January 1949 "settlement stipulation"' covering the other affiliates of the Building Trades Council. ' As will be seen, however, the. Painters entered into a subsequent settlement agreement with the General Counsel during the course of the hearing in June 1949. . 6'The Regional. Director's. action in this respect was.taken pursuant to. Section 203.33 of the Board' s Rules and Regulations. 6 Although the amended charge in Case No. 2-CB-112 asserted that the Painters had'd violated Section 8 (b) (2) of the Act, no such allegation was set forth in the complaint. `978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consolidated complaint, a notice of hearing, and notices postponing hearing, were duly servea upon the Carpenters, the Painters, and Fairmount. With respect to the alleged unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act, the complaint, as amended at the hearing, stated that between May 19 and 24, 1948, and between June 1 and 30, 1948, during the course of a strike among Fairmount's employees at its, Ivy Hill housing project in Newark,. New Jersey, the Carpenters and the Painters "with the assist- ance and support of other labor organizations affiliated with the Essex County Building and Construction Trades Council did, jointly and severally, engage in mass picketing, threats, and acts of violence against, and make promises of benefit to, employees of said Fairmount Company and also against and to employees of other employers engaged in subcontract work on, or the delivery of materials to, the said Ivy Hill project because they refused to join or assist the Respondents Carpenters Council, Painters Council, and other labor organiza- tions affiliated with the Essex County Building and Construction Trades Council in their concerted activities against said Fairmount Company and its sub- contractors." With respect to the alleged unfair labor practices within the meaning of Section 8 (b) (2) and (3) of the Act, the complaint as amended at the hearing, stated in substance that: (1) On or before May 18, 1948, the Carpenters was designated and selected as collective bargaining representative by a majority of Fairmount's employees in an appropriate bargaining unit consisting of all Carpenters at the Ivy I-Iili project including weatherstrippers, floorlayers, and linoleum layers; (2) on or before May 18, 1948, the Carpenters was, therefore, the exclusive bargaining representative of the employees in this appropriate unit; (3) on or before May 18, 1948, the Carpenters "demanded and insisted, among other things, that the said Fairmount Company agree to a contract which would cause the said Fairmount Company to discriminate against its employees by requiring it to hire or give preference in hiring to employees who were members in good standing of locals affiliated with the Respondent Carpenters Council" ; (4) on and since about May 18, 1948, the Carpenters "has engaged in a strike to compel said Fairmount to agree to, among other things, a contract containing provisions which would prevent said Fairmount Company from hiring nonunion employees on said project"; (5) on and since May 19, 1948, the Carpenters "with the assistance and support of other labor organizations affiliated with the Essex County Building and Construction Trades Council did . . . jointly and severally engage in mass picketing„threats, acts of violence and damage to property, for the purpose of compelling said Fairmount Company and its sub- :contractors on said project to cease hiring employees who were not, respectively, members of locals affiliated with the Respondent Carpenters Council, Painters Council, or of labor organizations affiliated with the Essex County Building and Construction Trades Council"; (6) by the foregoing acts, the Carpenters in violation of Section 8 (b) (2) of -the Act, attempted to cause Fairmount to discriminate against its employees contrary' to Section 8 (a) (3) of the Act; and (7) by the foregoing acts, the Carpenters also refused and is refusing to bargain in good faith with Fairmount in violation of Section 8 (b) (3) of the Act. On May 24 and May 25, 1949, Trial Examiner Isadore Greenberg, duly desig- nated by the Chief Trial Examiner, granted in part and denied in. part separate motions for bills of particulars concerning the allegations of the complaint,. Which motions had been made by the Painters and the Carpenters on May 18 and May'23, 1949, respectively. Thereafter, the Board denied the respective applications of the Painters and the Carpenters for leave to file interlocutory. appeals from Trial Examiner Greenberg's partial denials of their motions for bills of particulars. ESSEX COUNTY, VICINITY DIST. COUNCIL OF CARPENTERS, ETC. 979 Before the hearing, the General Counsel served upon the Painters and the Car- penters the. bills of particulars directed by Trial Examiner Greenberg. Before the hearing, the .Painters filed an answer to the complaint and the Carpenters filed an answer and motion to dismiss the complaint. In substance, both the Painters and the Carpenters denied the allegations of the complaint and asserted that (1) the complaint failed to set forth "facts sufficient to con- stitute an unfair labor practice and is insufficient in law" ; and (2) Fair- mount is not engaged in interstate commerce, and the Board, therefore, has no jurisdiction of the case under the Act. In its motion to dismiss, the Carpenters also asserted that the effect of Fairmount's operations on interstate commerce is "too negligible and insubstantial, remote and indirect to bring said operations and activities within the range of the Act," and that the picketing alleged in the, complaint as an unfair labor practice was protected by the guaranty of free speech in the Federal Constitution. Pursuant to notice, a hearing was held on various dates from June 2 to July 5, 1949, inclusive, at Newark, New Jersey, before.William F. Scharnikow, the under- signed Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the Carpenters, the Painters, and Fairmount participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the opening of the hearing, the undersigned ruled upon a number of motions before taking any evidence: (1) A motion by the General Counsel to amend the complaint to allege the occurrence of the unfair labor practices between May 19 and 24, 1948, and between June 1 and 30, 1948, rather than on or about May 19, 1948, was granted; (2) the motion to dismiss the complaint, filed by the Carpenters, before the hearing and now joined in by the Painters, was denied ; (3) renewals of the motions of the Painters and the Carpenters for bills of particulars (which were originally determined by Trial Examiner Greenberg) were disposed of, by denying the motions in part but directing the General Counsel to supply additional particulars which the undersigned believed were necessary in view of the amendment of the complaint; (4) a further motion by the General Counsel to amend the references in the complaint to the employees of Fairmount to describe such employees as being jointly employed by Fairmount and one Nick Blenx, who was Fairmount's superintendent, was denied ; and (5) a motion by the Carpenters to stay the proceedings until the Board had ruled upon its petition to appeal from Trial Examiner Greenberg's denial of its motion for a bill of particulars,? was denied. During the hearing, the General Counsel furnished the Carpenters with the additional particulars directed by the undersigned. After adducing. evidence concerning the nature of Fairmount's business opera- tions, the General Counsel's representative announced that a "settlement stip- ulation" had been executed with the Painters subject to the approval of the General Counsel. This stipulation, which was later approved by the General Counsel and received in evidence, provided, in substance, that the Painters, although denying the commission of any unfair labor practices, would not re- strain or coerce the employees of Fairmount or any of its subcontractors or suppliers, in the exercise of their rights guaranteed by Section 7 of the Act; that the Painters would cause its representatives to read this undertaking at the next regular meetings of the Painters and each of its affiliated locals, and that .upon compliance "the allegations) of the complaint filed in this proceeding against said Painters Council No. 10 shall be withdrawn or dismissed by proper 7 The Board's denial of this petition, to which reference has already been made, had not been communicated to the Carpenters before the hearing started. 961974-52-vol. 95-63 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD motion for said purpose before the Trial Examiner ." No such motion for with- drawal or dismissal has been made: When the General Counsel's representative first announced the execution of this stipulation, however, he stated that, pending the approval of the General Counsel, proof as to "the allegations of the complaint, insofar as they relate to the Painters council, will be held in abeyance." Whereupon, with the acquies-. cence of all counsel , the undersigned ruled "that. so much of the complaint as alleges unfair labor practices on the part of the Painters council in Case Number 2-CB-94 is presently severed from the trial of the remaining issues involving the Carpenters in Cases Numbers 2-CB-94, 2-CB-97, and 2-CB-112; that pend- ing further motion by the General Counsel, the hearing as against the' Painters council in Case No. 2-CB-94 is suspended, subject to its possible resumption upon proper showing, on notice to the Painters ; that the severance be accomplished at the present time, the present record, including the transcripts and exhibits admitted to the present point of this hearing, and the identification of any ex- hibits that may not have been admitted, is preserved for possible use in the event that the hearing against the Painters is resumed, but only in such case ; and by the same reasoning, any portions of the record, including transcripts ' and ' evi- ,deuce which is developed from this point on in this hearing, shall not be a part of the record against or on behalf of the Painters in the event of a resumption of'the hearing on notice from the General Counsel." After this ruling was made, counsel for the Carpenters moved that the com- plaint against the Carpenters be dismissed because, in substance, it would be improper for the Board, as a matter of both law and policy, to make any findings of unfair labor practice or to issue any remedial order against the Carpenters after the General Counsel, by the various settlement stipulations which have been mentioned, had relieved all the other labor organizations charged by the complaint to have been joint participants with the Carpenters in the alleged unfair labor practices, from the possibility of the issuance of any remedial order against them. The undersigned denied this motion.' . At the conclusion of the General Counsel's case-in-chief, the undersigned denied a' motion made by the Carpenters to dismiss the complaint against it upon' the grounds previously urged and also upon the ground that the General Counsel had failed to present a prima facie case. At the end of the hearing, the under- signed reserved decision upon the Carpenters' renewal of its motion to' dismiss the complaint on all the grounds previously urged, and also upon the ground that the General Counsel had failed to sustain' the material allegations of the complaint by a preponderance of the evidence. This motion is now denied. Before the hearing concluded; the undersigned granted unopposed motions to conform the complaint, the General Counsel's bills of particulars, and the answer of the Carpenters to the proof in. the matter of dates, places, and the, spelling of names. Since the hearing, the undersigned has received briefs • from the. Cal- penters and Fairmount. Upon the entire record in the case and,from his observation of the witnesses, the undersigned makes the following: .8 Section 3 (d) of the Act provides that the General. Counsel "shall have final authority, on behalf of the Board , in respect of the investigation of charges and issuance of com- plaints under section 10 , and in respect of the prosecution of such complaints before the Board . . . . The Board. therefore, may not review either (1) the General Counsel's decision not to issue a complaint against any of the labor organizations named in the charges other than the Carpenters and the Painters ; ( 2) his decision during the hearing - not to proceed with the prosecution of the complaint against the Painters ; or (3) his reasons for these decisions . The Board 's function is to decide upon the evidence taken at the' hearing, simply whether the Carpenters committed unfair labor practices and, if so, to issue the type of remedial order against the Carpenters which is required by the Act. ESSEX COUNTY, VICINITY DIST. COUNCIL OF CARPENTERS, ETC. 981 FINDINGS OF FACT 1. COMMERCE Fairmount Construction Company, a New Jersey corporation, is a general building contractor engaged in the construction of private dwellings in the city. of Newark, New Jersey. On March 12, 1947, it took title to a 50-acre tract of hind in Newark, known as the ivy Hill tract, for the purpose of building and sell- ing-600 dwelling units, consisting for the most part of two-family homes. By May 31, 1949, just before the beginning of the hearing. in the present case, 120 two- family houses had been completed on the tract, 16 were in the course of construc- tion , and sales of an undisclosed number of completed houses had amounted to $2,772,000. In its building operations at the Ivy Hill project between March 12, 1947, and May 31, 1949, Fairmount's total expenditures for labor and materials amounted to approximately $2,150,000. Of this sum, approximately $800,000 was paid by it to its own employees as wages ; $933,224.81 was paid in the purchase of mate- rials used by it as general contractor; and $413,778 was paid to its subcon- tractors for materials and specialized services. A further breakdown of these general items indicates that, of the material purchased and used by Fairmount itself as general contractor, $403,144.47 by value was' secured, and shipped directly to Fairmount at the building site from points outside the State of New Jersey, and that although the remainder (of a value of $530,080.34) was obtained from suppliers within the State of New Jersey, the suppliers themselves had secured approximately 85 percent of these materials or $449,155.08 by value from points outside the State of New Jersey. The Carpenters contends that the operations of Fairmount as a building con- tractor are purely local and that they do not constitute or affect commerce within the meaning of the Act. However, in view of the substantial inflow of materials to Fairmount, from States other than the State of New Jersey, it is clear and the undersigned finds, that a disruption of Fairmount's operations would have a substantial effect upon commerce and, therefore, that if the activities of the Carpenters have affected Fairmount's operations, they have also affected com- Inerce within the meaning of Section 2 (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Essex County and Vicinity District Council of Carpenters , A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Carpenters' refusal to bargain and its attempt to cause discrimination by Fairmount 1. The appropriate unit and representation by the Carpenters of a majority of the employees therein The complaint as amended at the hearing alleges, the Carpenters admits,' and the undersigned finds that (1) on or before May 18, 1948, the Carpenters was des- ignated and selected as collective bargaining representative by a majority of Fair- In its answer as- amended at the hearing, the Carpenters expressly admitted the appropriateness of the unit set forth in the amended complaint, and, according to the statements of its, counsel at the time of amendment, intentionally omitted any denial of the allegation of the'conrplaint that the Carpenters had been designated and selected as collective bargaining representative by a majority of the. employees in that unit. 982 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD mount's employees in an appropriate unit for the purposes of collective bargain- ing, consisting of all carpenters at the Ivy Hill project including weatherstrippers, floorlayers, and linoleum layers; and (2) that on or before May 18, 1948, the Carpenters was therefore the exclusive bargaining representative of the em- ployees in this appropriate unit. In accordance with the provisions of Section 2 (2) and (11) of the Act, with the apparent intention of the parties in the present case, and with the consistent practice of the Board, the undersigned also specifically finds that supervisors, as defined in Section 2 (11) of the Act, are ex- cluded from the appropriate unit. 2. The issues and the background As has already been noted, the complaint as amended alleges in substance, and the Carpenters' answer as amended denies, that, by demanding a contract with Fairmount which would either have prevented the hiring of nonunion employees or given preference in hire to union members, and by supporting its demands with a strike accompanied by mass picketing, threats, violence, and damage to prop- erty, the Carpenters, before, on, and since May 18, 1948, has refused to bargain 'in good faith with Fairmount and has attempted to cause Fairmount to discrimi- nate against its employees, thereby committing unfair labor practices within the meaning of Sections 8 (b) (3) and 8 (b) (2) of the Act, respectively. The Carpenters is thus charged in the complaint with the commission of unfair labor practices in connection with the contract demands made by it in 1948. However, Fairmount's relations with the Carpenters and other A. F. of L. unions during the preceding year provide a background which must be considered in an ap- praisal of the Carpenters' 1948 contract demands. In February and early March 1947, just before Fairmount began construction, Business Agent 'Gene O'Horo of the Carpenters and Vice-President Arthur Padula of Fairmount discussed the terms and conditions under which carpenters would work on the Ivy Hill project. As the basis for their discussion, O'Horo presented to Padula a copy of an existing contract between the Carpenters and the Asso- ciated Contractors of Essex County, Inc., an organization of building contractors of which Fairmount has never been a member. Although Fairmount and the Carpenters did not execute a written contract, O'Horo and Padula reached an understanding in March 1947 that Fairmount would pay the prevailing union rates of pay. As a result, in order to equal the carpenters' wage rates provided by successive contracts between the Carpenters and the Associated Contractors, which were executed on April 1, 1946, and April 1, 1947, Fairmount paid its carpenters $2.30 per.hour during March 1947 and then increased the rate to $2.50 per hour on April 1, 1947. Until May 18, 1948, only members of the Carpenters worked as carpenters on the project. As O'Horo explained it in his testimony, upon the hire of every car- penter by Fairmount's foremen, the Carpenters' steward, pursuant to his instruc- tions and the Carpenters' working rules, would request the man to show his "book".as proof of his membership in the Carpenters, and if he had no "book," the man "would not go to work." It thus appears from the testimony of the Carpenters ' business agent that, until May 18, 1948, the Carpenters, through their steward and with the apparent acquiescence of Fairmount, effectively limited the employment of carpenters on the project to members of the Carpenters to 10 For the purpose of showing that the Carpenters controlled hiring before May 18, 1948, Padula testified that all carpenters hired by Fairmount were either furnished by the Carpenters at Fairmotint 's request , or before hire, were referred to the Carpenters for necessary clearance. O'Horo and Secretary John Walsack of the Carpenters denied, however, that the Carpenters had ever been requested by Fairmount to furnish men. The ESSEX COUNTY. VICINITY DIST. COUNCIL OF CARPENTERS., ETC. 983 Until May 18, 1948, Fairmount also dealt with a number of other A. F. of L. unions, including Local 16 of the Bricklayers, Masons and Plasterers Interna- tional Union (herein called the Bricklayers) and Local 502 of the International Hod Carriers Building & Common Laborers Unions of America (herein called the Laborers),. as the respective representatives of the different crafts employed on the Ivy Hill project. Like the Carpenters, the Bricklayers and the Laborers also requested Fairmount at various times to comply with the wage rates and terms and conditions prescribed for their respective trades in contracts which each of them had separately made with the Associated Contractors. As in the case of the Carpenters, Fairmount in practice observed the wage rates and conditions thus prescribed for bricklayers and laborers but never executed any contract with either union. Until May 18, 1948, only members of the Bricklayers were employed as bricklayers on the Ivy Hill project, although it appears that Fair- mount hired laborers without regard to union membership. 3. The Carpenters' contract proposal in 1948 In March 1948, the Carpenters, the Bricklayers, and the Laborers each asked Vice-President Padula of Fairmount to increase the wage rates of the members of their trades employed on the Ivy Hill project to equal new, higher wage rates just granted by the Associated Contractors in new contracts with each of the unions, which contracts were to become effective on April 1, 1948. When it submitted its demand, the Carpenters gave Padula a copy of its new contract with Associated Contractors. Article IX of this contract provided : It is understood between the parties to this Agreement that members of the United Brotherhood of Carpenters and Joiners of America will not be permitted to work for any Employer .who is not a member of the Associated Contractors of Essex County unless such Employer has signed or agreed to the rate of pay and other conditions as set forth in this Agreement. Signa- tures of such Employers'shall be the properly constituted officers, a member of the firm, or the individual Employer, as the case may be. On March 26, 1948, Business Agent Eugene O'Horo of the Carpenters informed Padula that the Carpenters wanted Fairmount to sign an acceptance of all the terms of this contract, including a new wage rate of $2.90 an hour. The General Counsel and Fairmount contend, and the Carpenters denies, that the terms of this proposed contract and of the Carpenters' working rules and regulations which were incorporated by reference, would make membership in the Carpenters a condition of employment by Fairmount, contrary to the provisions of Section 8 (a) (3) and Section 8 (b) (2) of the Act. The assertedly objectionable provisions of the proposed contract itself were the following : . ARTICLE VII Strikes and Lock-Outs All disputes or complaints of whatever character if not adjusted by the Subordinates involved shall be referred to a joint committee of the two organizations for settlement and the decision of this committee shall be final and binding. If the committee so appointed are unable to agree on the subject in dispute, they shall provide an equitable means of Arbitration. undersigned believes it unnecessary to resolve this particular conflict in the testimony in view of his finding, based upon O'Horo's testimony , that the Carpenters was able to exclude, and did exclude , the employment of any carpenters other than those who were members of the Carpenters. . , -1 fin'- __ - 984 , DECISIONS OF NATIONAIi LABOR RELATIONS BOARD- No cessation of work shall take place for any reason except Non-Union conditions prevail. A Non-Union condition shall prevail when Non-Union men are employed in any construction work where such work as they are engaged in is done normally by Union men affiliated with the Building Trades Department of the American Federation of Labor. ARTICLE XI The Working Rules of the Essex County District Council of Carpenters, approved July 22, 1947 and the addendum to this Agreement as signed on even date herewith and the Joint Apprentice Agreement shall be considered as part of this Agreement. ADDENDUM Master Carpenters shall employ, as far as possible and legal, only such. journeymen carpenters, machine hands and foremen, carpenters, as are members of the United Brotherhood, carrying a Due Book issued by the Essex County District Council. The Union agrees to supply the Employer with Union carpenters to the extent. of its ability. It shall not be deemed a breach of this Agreement for members of the Union to refuse to work on jobs on which there are Non-Union workers employed. All foremen in a shop shall be Journeymen Carpenters and members in good standing in the United Brotherhood of Carpenters and Joiners of America. All Assistant Foremen must be members in good standing of the . Essex County District Council for a period of four (4) years. The material working rules incorporated by the proposed contract were the following : SEC. 5. Master Carpenters shall employ, as far as possible, only such jour- neymen carpenters, machine hands and foremen carpenters as are members of the United Brotherhood, carrying a Due Book issued by the Essex County District Council. SEC. 6. All foremen in a Shop or on a Job shall be Journeymen Carpenters and members in good standing in the United Brotherhood of Carpenters and Joiners of America. All Assistant Foremen must be members in good stand- ing of the Essex County [District Council] for a period of four years. SEC. 13. No Non-Union Carpenter shall be allowed to work in this District unless he has complied with Section 34 of the [District Council] By-Laws. SEC. 15. Non-Union men shall be allowed to work on a job in this District with a Non-Union carpenter without notifying the [District Council]. Any member found guilty of violating this Section shall be fined not less than five ($5.00) dollars for each offense, at the discretion, however, of the [District Council]. SEC. 25. No member of any of the affiliated Local Unions of this District shall work on any job or in any shop, mill or factory, with any person who: is employed in ally of the branches or sub-divisions of the carpentry industry unless such person is a member of the [United Brotherhood of Carpenters & Joiners of America] and in possession of the Due Book of this District. For violations of this paragraph, he shall be fined the sum of ten ($10.00) dollars and for the second offense, twenty-five ($25.00) dollars , or suspended for three (3) months. ESSEX ,COUNTY, VICINITY DIST. COUNCIL OF CARPENTERS, ETC. 985 4. Discussions and events prior to the strike Upon receipt of the March 1948 demands of the Bricklayers and the Carpenters, Padula agreed that, to show good faith pending discussion of its objections to the proposals made by the Bricklayers and the Carpenters, Fairmount would pay the requested increase in bricklayers' and carpenters' wage rates. As a matter of fact, Fairmount began paying these higher rates on April 1, 1948, in accordance with this temporary commitment, and continued doing so until May 18, 1948. In the beginning of April, however, in order to fortify his argument against the wage increase proposed by the Carpenters, Padula prepared, and had Fairmount's carpenters sign, a typewritten statement that they were satisfied with the working conditions as they had existed before April 1, 1948. On April 5, 1948, Padula appeared before the Bricklayers' Executive Committee and protested that the terms requested by the Bricklayers were "illegal" and that Fairmount was not bound by the terms of the Bricklayers' contract with the Associated Contractors, since Fairmount was not a member of that organization. As for the Carpenters' contract proposal, Padula discussed that with O'Horo when it was presented to him on March 26, 1948, and then, at Padula's request, also with the Carpenters' council in O'Horo's presence on April 6. It is un- disputed that on both occasions Padula objected to the increased wage rate, contending that it was impossible for Fairmount to pay it and that, although the proposed $2.90 rate might be satisfactory for commercial construction, the $2.50 rate should be continued as a secondary rate for home building. Padula testified, and the undersigned credits his testimony in spite of denials by O'Horo and Secretary John Walsack of the Carpenters;' that in his conversation with O'Horo on March 26, and again on his appearance before the Carpenters' council on April 6, he also objected to the proposed contract and its incorporation of the Carpenters' working rules because he said they imposed illegal closed-shop con- ditions with respect to both journeymen carpenters and apprentices; that on March 26, O'Horo referred Padula to Article X of the proposed contract which stated, in substance, that. inadvertently illegal provisions were to be considered ineffective ; 'Z and finally, that on April 6, Padula told the Carpenters' council without comment from it, that "there would have to be. an open shop" unless the Carpenters were "properly certified," I. e., authorized to enter a union-shop contract in a Board-conducted election among the employees under the provisions of Sections 8 (a) (3) and 9 (e) of the Act. According to the further testimony of Padula, which the undersigned credits in spite of denials by O'Horo and Walsack, Padula also told the Carpenters on April 6 that he wanted an 8-hour day and 40-hour week instead of the existing 7-hour day and 35-hour week, and an elimination of certain practices which he termed as "featherbedding." Fairmount received no answer from the Carpenters or the Bricklayers to the objections which Padula thus made to their contract proposals. On May 11 or 12, however, Padula received in the mail a printed form of the Carpenters' con- 71 O'Horo and Walsack testified that Padula objected only to the wage increase at this stage of discussion , that he did not mention the possibility of Fairmount's operating under open-shop conditions nor discuss or question the legality of any of the clauses of the proposed contract. It appears, however, from a report made by the Carpenters' Executive Committee to the full Council on April 15, 1948, that, on April 6, Padula, in objecting to the wage increase, spoke of his intention of "going open-sbop." 11 "ARTICLE X. Legality: Nothing in this Agreement is intended to be in conflict with any Federal or State Legislation, Rules, Orders or Regulations now in effect, or which may become effective during the life of this Agreement. If such a conflict be found, then the Law shall prevail and this Agreement, the Addendum, the Working Rules of the Essex County District' Council of Carpenters, and the Joint Apprentice Agreement shall be deemed amended to the extent necessary to conform with the Law. The remainder of the contract shall remain in full force and effect." 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tract with the Associated Contractors, together with a letter from Secretary John Walsack of the Carpenters, requesting him to sign the acceptance form provided at the end of the contract. Padula thereupon asked Secretary Walsack over the telephone whether there was "any possibility of a review" of the Carpenters' apparent decision to insist upon the form of its contract with Associated Contractors. Walsack replied that Padula had received. the Carpenters' final answer and that "we cannot dis- cuss it, we cannot change it, sign [the contract] and send it back. That's what the contract is, and that's what you can get. We're not going to negotiate with every individual contractor in the business ... sign it or we're going to pull the job." 1S . Between May 10 and 18, Padula also spoke 3 or 4 times to Business Agent O'Horo of the Carpenters. On these occasions, Padula repeated his objections to the proposed contract, including the asserted illegality of its provisions, and asked "could anything be done about it?" O'Horo replied that nothing further could be done ; that the Carpenters was not going to grant Fairmount a secondary wage rate for homebuilding ; and that the proposed contract was legal, particu- larly in view of Article X.14 5. The strike and picketing in general On Tuesday morning, May 18, Fairmount's carpenters, bricklayers, and laborers came to the Ivy Hill project at 8 o'clock, their usual starting time, but did not begin to work. When sent for by Padula, Shop Steward Bucci of the Carpenters told Padula that "he had been instructed, no contract, no work." At 9 o'clock that morning, Padula called the men together and told, them in substance that in his appearances before the Bricklayers'. executive committee and the Carpenters' council, he had "made every effort ... to correct an illegal demand which [these unions] were making;" that he "was not going to subject [himself] to a suit on the part of Americans who wanted the right to work and couldn't, simply because they weren't a member of the Union ;" that the unions' contracts with Associated Contractors were not binding upon him ; that, if the men before him were refusing to work unless he signed the proffered contracts, he "was declaring an immediate open shop, and anybody had the right to work, and those who didn't want to work would be paid_off;" that what he proposed was not "a union shop or a closed shop, but . . . an open shop until the union had taken. the necessary steps to provide for any other working conditions" ; and that those of the men before him who elected to stay at work, could do so at the wage rates paid by Fairmount before April 1, but their workday and workweek would be increased from 7 to 8 hours and from 35 to 40 hours, respectively." 13 The findings as to this conversation are based upon Padula's uncontradicted testimony. 14 The findings in the text concerning these conversations between Padula and O'Horo are based upon Padula's testimony that, on his complaining to O'Horo about the terms of the proposed contract, O'Horo said that nothing could be done and that the Carpenters would not grant a secondary wage rate; and also upon the testimony of O'Horo that (1) O'Horo "always" told Padula that he could not vary the terms of the Carpenters' contract. with the Associated Contractors ; (2) on May 14, Padula told O'Horo that he wanted "to look into the legality" of the provisions of this contract; and (3. O'Horo there- upon assured Padula that the contract was legal, particularly in view of Article X. To this extent, the testimony of Padula and that of O'Horo is consistent and credited. The undersigned, however, credits Padula's denial of further testimony by O'Horo that on May 14,. Padula told O'Horo that he was then too busy to discuss the contract proposal and would get in touch with Walsack on May 17. ' . 10 The findings in the text as to the carpenters ', bricklayers ', and laborers' refusal to .work on May 18, and as to the substance of Padula's speech to them, are based upon the ESSEX COUNTY, VICINITY DIST. COUNCIL OF CARPENTERS, ETC. 987 None of the carpenters, bricklayers, or laborers offered to remain at work and they were all paid off within an hour after Padula's speech. On the following morning, May 19, a number of new carpenters, bricklayers, and laborers had been hired to take their places and began work on the project. During the morning of May 18, immediately after the union employees had refused to work and Padula had delivered his -speech to them, Business Agent O'Horo of the Carpenters came to see Padula.1B- According to O'Horo's un- contradicated testimony, which the undersigned credits, O'Horo asked Padula, "Have you locked the men out?" and Padula replied, "They are not locked out, they can go to work if they wish at the old rate, otherwise I am paying them off. . . ." Padula testified (and the undersigned 'credits his testimony) that O'Horo also said in' substance that Padula "wouldn't have a chance" if he thought he "was going to bust the unions" ; that Padula then said that he would "take his chances rather than violate the law" by granting a closed•shop ; and that O'Horo replied that there was nothing in the contract that violated the Taft- Hartley law; - On Tuesday morning, May 18, there was a meeting of the Board of Business Agents of the Building Trades Council, of which the Bricklayers, but not the Carpenters nor the Laborers, was a member. Fraser Holzlohner, business agent for the Bricklayers and also president of the Building Trades Council, had invited Business Agent O'Horo of the Carpenters to attend. Before O'Horo arrived, however, the business agents, upon Holzlohner's report that Fairmount had "paid off the Union men and declared the [Ivy Hill]. project an open shop job," passed a resolution "that a Picket Committee be appointed to take charge and each Trade supply pickets." The resolution also designated a "committee" consisting of the "Masons [i. e., the Bricklayers], Teamsters, Plumbers, Elec- tricians, and Laborers." 17 According to O'Horo, when he arrived at the end of this meeting, he told Holzlohner that the Carpenters were going to picket the Ivy Hill project whether or not the Building Trades Council did so, and, being then informed that the Building Trades Council intended to picket, O'Horo added that he had picket signs ready and that picketing would begin the next morning. According to Holzlohner, the Building Trades Council and the- Carpenters never discussed the possibility of separate picketing ; they "just worked together." As president of the Building Trades Council, Holzlohner took general charge of the pickets and appointed a committee of picket captains, including all the busi- ness agents of the Building Trades Council and also Carpenters' Secretary John Walsack, and Carpenters' Business Agents O'Horo, Swanson, and McLaren. Under this arrangement, picketing began on Wednesday morning, May 19.1s Of 200 or 300 pickets who appeared at the project that morning," 15 or 18 were members of the Carpenters, who had been asked by O'Horo to serve as pickets. uncontradicted testimony of Padula. No one else who was present at the time testified as to these matters. 19 In his testimony , O'Horo fixed the date of this conversation and of the cessation of work of the union employees as Monday, May 17, and not Tuesday, May 18, as Padula testified. The quotations are from the report of the Board of Business Agents to the Building Trades Council. The mention in this report of the "Laborers" as being on this committee apparently has reference to locals of that International other than Local 502 , which, as has been noted , was not, at this time , a nrember of the Building Trades Council. 7s Details of incidents on the picket line which are alleged in the complaint to be unfair labor practices within the meaning of -Section 8 ( b) (1) (A) of the Act are discussed in a later section of this Report. 19 This estimate as to the number of pickets was given by Officer Grill and Sergeant Petroll of the Newark Police Department. Padula's estimate was between 800 and 1,000. 988 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD Some of the pickets bore sighs stating, "This job is nonunion-Essex County Building and Construction Trades Council." The Carpenters' pickets for the most part carried signs of the Carpenters with a similar legend. Among the picket captains who were there that morning were Carpenters' Secretary Walsack, and Carpenters' Business Agents O'Horo and Swanson. Early in the morning of this-first day of the picketing, Padula asked O'Horo why the Carpenters' pickets were carrying signs of the Building Trades Council saying that the job was nonunion, in view of the facts that the Carpenters was not a member of the Building Trades Council and the statement on the signs was "in direct defiance of the law." According to Padula's uncontradicted testimony as to this conversation which the undesigned credits, O'Horo replied, "that all of the forces of the Building Trades Council were going to be used to force [Padula] to sign that closed-shop agreement and that if [Padula] had any brains before [he] went bankrupt, [he] would sign it." Padula further testified, and the undersigned credits his testimony in spite of an oblique denial by O'Horo 20 that (1) later in the morning, O'Horo told the purchaser of one of the almost completed homes on the project that the picket line would not be moved away from this house because "we are stopping all, of these operations, and will continue to stop him until he goes union"; and (2) at about the same time, O'Horo told some of the pickets who asked why they had to picket, that it was a question of the life or death of the union, that Padula was trying to break' the union, and "that they had everybody in the Building Trades Council see to it that they would break [Padula] . . . in order to see to it that the nonunion scabs got the hell off the job." At approximately 1 o'clock-that afternoon, Padula had his superintendent nail to one of the buildings under construction a sign which stated, "This is America. This is not a nonunion shop. This is an open shop. For any American who wants to work." For more than 3 months thereafter, this sign was kept on the outside of this building. The picketing continued, with O'Horo supplying volunteers from among the members of the Carpenters to serve along with pickets from the other unions. O'Horo himself appeared at the project with the pickets practically every day' from the beginning and gave instructions as to their line of march and their carrying of signs. Carpenters' Secretary Walsack and Carpenters' Business Agents Swanson and MeLaren also "spent considerable time" on the picket line, as did "members of the [Carpenters] council and Executive Board." 21 O'Horo reported to the Carpenters' council at successive meetings beginning •with May 20, his establishment of the picket line, his recruitment of pickets, his own participation and that of the other Carpenters' officials in the picketing, and the need for more pickets, because (as his report on June 3 put it) "the building trades are cooperating in this affair and the Carpenters must do their share." On June 12, the first step was taken for the Bricklayers and Carpenters to assume the primary burden of maintaining the picket line, with such help as might be received from the other unions. On that date, according to the min- utes of the Bricklayers' Executive Board, the Carpenters and the Executive Board of the Bricklayers held a joint meeting at which they decided that each would thereafter supply 25 pickets and would request "all other unions .. . to ask their members to go on the picket line whenever possible." This "plan" 21 O'Horo, denies merely that he was at the street intersection where Padula testified that the conversations described in the text had occurred. 21 The quotations in the text are from a report made by O'Horo to the Carpenters' council at its meeting on June 3. ESSEX COUNTY, VICINITY DIST. COUNCIL OF CARPENTERS, ETC. 989 was approved by the Board of Business Agents of the Building Trades Council on June 15. According to the testimony of Holzlohner, which the undersigned credits, picketing by crafts other than the Bricklayers and the Carpenters was voluntary thereafter and Secretary Walsack.of the Carpenters took over the direction of the picket line. Consistent with this decision, on June 17, the Carpenters' Council set up a committee, which began functioning on or about June 22 or 23, in the assignment and supervision of pickets, and checking their appearance on the line. After June 22 or 23, about 8 carpenters served on each shift of the picket line with pickets from other labor organizations. 6. The mediation meeting of May 25 On May 25, at the request of Padula, Chairman Walter T. Margetts, Jr., and Member Sal Maso of the New Jersey State Mediation Board (herein referred to as the Mediation Board) met with Padula, his attorneys (John Yauch and James Fagan),42 and President Holzlohner and Vice-President Vohdin of the Building Trades Council, O'Horo of the Carpenters, and Dan Petrucelli of the Laborers. At the beginning of the meeting, either Padula or Yauch, his attorney, read a memorandum in which Fairmount requested : (1) Assurance that the union conferees represented all members of the Building Trades Council, the Carpenters, and the Laborers ; (2) provisions for the enforcement of any agreement reached; (3) dissipation of bad feeling on both sides; (4) an "open shop" in which union and nonunion workers were'to work along side of each other at the same wage scale ; (5) a full apprentice program in accordance with, the Veterans' Admin- istration's Plan, for both veterans and non-veterans, with one apprentice for each five journeymen, including laborers ; (6) recognition by the unions of the right of any employee to join the appropriate union within 30 days after application ; and (7) the right of Fairmount to complete building on the Ivy Hill project at the wage rate existing prior to April 1, 1948, to eliminate paid holidays, and to extend the work day from 7 to 8. hours, and the work week,. from 35 to 40 hours. So far as Holzlohner's authority in the meeting was concerned , it is undis- puted that he told the conferees that he was acting as "spokesman" or "mouth- piece" of the unions involved in the controversy, including the Carpenters but not the Laborers, 3 and that during the conference he acted and spoke in that capacity without'any expression of disagreement by O'Horo of the Carpenters, who was. present throughout the session. The undersigned, therefore, finds that the pertinent unchallenged statements as to the position of the unions as a rd Three of Fairmount's supervisors were also present. zi In accepting Padula's suggestion of a meeting to settle the Ivy Hill dispute, Holzlohner had made substantially the same statement in a telegram sent to Padula on May 22 : In reply to your telegram of yesterday, please be advised that the writer speaks for the entire skilled craftsmen that are members of the Essex County Building and Construction Trades Council and the Carpenters who are presently not members of the above mentioned Council. I am ready at any time to sit down with a committee of one from each of the skilled trades formerly employed on your project at your convenience . I will not represent the Labors (Sic) Union having jurisdiction of your project because of the business agent and the Union were and are still suspended on account of a stoppage of work by their organization and jurisdictional disputes. ' -990 DECISIONS- OF NATIONAL'-LABOR RELATIONS BOARD group, as well as the consistent.statements of O'Horo, are certainly attributable to the Carpenters .^ A 4-hour discussion of Padula's proposals, and also possible compromises, followed Holzlohner's statement concerning his role in the meeting, and resulted in the union-conferees' agreement, on Padula's suggestion, to submit the follow- ing 6-point settlement to their, respective organizations and to return to the Mediation Board with their answers on Tuesday, June 1: (1) Thirty-two two-family houses will be built at working conditions prevailing prior to April 1, 1948. (2) Bygones will be bygones. (No discrimination by either side.) (3) Upon completion of 32 houses, Fairmount will pay new scale in effect after April 1, 1948 and will employ Union labor provided, however, Fair- mount can obtain mortgage financing which would enable the erection and sale of houses. (4) If Union cannot supply men, Fairmount to be permitted to hire men at the prevailing rate. (5) No individual publicity by either side-only by joint statement. .(6) Expiration date-April 1, 1949. Point 4 and also, in part, Point 3 of this proposed settlement obviously repre- sent a modification of the "open shop" proposal made by Padula at the beginning of the meeting. The General Counsel and Fairmount contend, upon.the basis of testimony given by Padula and Yauch, which will shortly be discussed, that this modification of Padula's "open shop" request was the result of the Union con- ferees' opposition to the "open shop" 'principle during the meeting of May 25 and their insistence, instead, upon the terms and conditions of the Carpenters' contract with Associated Contractors or at least some form of union security. Whether this is so, depends of course upon the substance and credibility of the testimony not only of Padula and Yauch but also of Holzlohner and O'Horo, since these four were the only witnesses who testified as to what happened at the meeting of May 25, 1948. Padula and Yauch testified. that the conferees discussed Padula's request for an unequivocal "open shop" provision and his attack, in this connection, upon the legality of the Unions' proposals embodied in the Carpenters' contract with the Associated Contractors, and that it was after this discussion that Padula sug- gested Point 4 as one of the bases for settlement. O'Horo, too, testified that this was so, although he could not "recall the whole discussion," and therefore gave none of its substance. According to Padula's testimony, during the discussion of his "open shop" pro- posal, Holzlohner said, with O'Horo nodding assent, that Padula was a God damn union buster ; that Holzlohner was not going to tolerate any individual breaking up unionism and the trade movement ; that "who the hell did [Padula] think he was, as an individual contractor, to allow nonunion men to work along side of union men" ; that "no s-o:b" was going to work on that job unless he was a hundred percent union man; that if Padula didn't like it, he could jump out of 24 It is consequently unnecessary to resolve a conflict in the testimony as to. whether (as Padula and Yauch testified ) Holzlohner said that he was authorized to speak for, and represented, the Building Trades Council 's unions and the Carpenters , or whether (as O'Horo testified) Holzlohner said that he was the spokesman for the group but that he had no authority for any particular organization and that O'Horo and Petrucelli were there to represent the Carpenters and Laborers respectively. 25 There is no dispute as to the substance of this proposed settlement . It is set forth in the text exactly as it was summarized by Chairman Margetts of the Mediation Board in a memorandum mailed by him to the parties on May 26, the day following the meeting. ESSEX COUNTY , VICINITY DIST. COUNCIL OF CARPENTERS , ETC. 991 the seventeenth story window ; that the unions didn 't recognize any Taft-Hartley Act; that this was going to be a 100 -percent closed shop and union shop; and that there was no sense in talking about it anymore. Yauch testified that, during the discussion of Padula 's "open shop" proposal, either Holzlohner or O'Horo said they would never go along with nonunion men working alongside of union men ; that Padula wasn 't big enough to bring about such a result ; that the closed shop was proper ; and that they . weren't going to have someone come in and break down these things that they felt were important to unionism. Differing with the other three witnesses who testified as to this meeting, Holz lohner said at several points in his testimony that he did not recall any discus- sion of Padula 's "open shop" proposal . The further gist of Holzlohner 's testi- mony, constructed most favorably for the Carpenters , is that (1) the Unions asked for the same contract terms they had gotten in their contracts . with the Associ- ated Contractors ; ( 2) Padula abandoned his "open shop" proposal without discussion or argument , and suggested as Point 4 of the proposed settlement, that, "if Union cannot supply men , Fairmount to be permitted to hire men at the pre- vailing rate"; (3) since Point 4 as thus worded , was in accord with the Unions' position , their representatives tentatively agreed to accept it; and (4) there was no discussion as to whether Fairmount was to be required under Point 4 to hire only union members if they were available because, as Holzlohner testified , "I settled that point very quickly by saying that under the Taft-Hartley law he could hire whoever he pleases and that we weren't going to get involved Under the Taft-Hartley law, because that's one of the things about the Taft- Hartley law that I specifically understood." The undersigned cannot accept the substance of this testimony of Holzlohner so far as it conflicts with that of the testimony of Padula , Yauch, and O'Horo. Point 4 of the settlement proposal by Padula was clearly a provision for the pref- erential hiring 'of union members and inconsistent both with the "open shop" principle and the provisions of the Act. It is incredible , although Holzlohner would have the Board believe from his testimony , that Padula by proposing Point 4 thus abandoned his attempt to secure an "open shop" without argument or discussion ; that Holzlohner and the other union representatives failed to recognize Point 4 as a preferential provision which would have required Fair- mount to hire only union members if they were available ; or, finally , that, in ex- plaining his tentative acceptance of Point 4, Holzlohner made the obviously in- appropriate comment that "under the Taft-Hartley law [Padula] could hire whoever he pleases." Upon the foregoing consideration of the evidence , the undersigned finds, con- trary to the testimony of Holzlohner , that ( 1) as Padula , Yauch , and O'Horo testified , the conferees discussed Padula's "open shop" proposal and his attack upon the legality of the Unions' proposals , and (2 ) as Padula and Yauch testified , Holzlohner strongly opposed Padula's "open shop " principle , stating in .substance , with the assent of O'Horo of the Carpenters , that the Unions would not consent to a situation in which nonunion men worked alongside of union men, that they insisted upon closed-shop conditions as proper and necessary to the existence of unionism , and that they would talk no further about the matter.. The undersigned further finds, upon the testimony of Padula , that it was this attitude of the union representatives , including O'Horo of the Carpenters, that caused him to suggest Point 4 as a solution of this particular element of the dispute. When the union representatives told Padula at this meeting on May 25 that they would have to submit the proposed 6-point settlement to their respective 992 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD organizations and then return with their answers on June 1, Padula suggested that, in the meantime, the picket line be reduced to 10 and that, in return, there would be no deliveries of material to the project. The union conferees, however, refused to limit the number of pickets and the matter was dropped. 7. Events After May 25 In the afternoon or evening of May 26, several. trucks appeared at the project to. deliver lumber. The pickets, including O'Horo and Holzlohner, gathered around the trucks and protested that Padula had broken a promise not to secure materials until the Unions had given-their answer to the settlement proposals. Upon being called to the scene by Padula, Attorney Yauch reminded O'Horo and Holzlohner that no such promise had been given because the unions had refused to reduce the number of pickets. Holzlohner said that the deliveries might jeopardize the Unions' acceptance of the proposed settlement. Yauch then per- suaded Padula not to. take delivery of the lumber. The executive boards of the Carpenters and of the Bricklayers conferred together on May 28 and decided. merely to poll each delegate to the councils upon the question of whether the proposed 6-point settlement should be accepted. The poll was apparently not taken ; in any event, no decision was reached. Padula testified and O'Horo denied, that at .about 7 p. m. on Saturday, May 29, O'Horo telephoned Padula that the Carpenters had rejected the 6-point proposal. According to Padula,. he thereupon ordered lumber to be delivered early in the morning of Tuesday, June 128 According to'O'Horo, he was notified by-one of the business agents of the Carpenters on Monday evening, May 30, that Padula intended to take deliveries of materials early the following ,morning. He therefore appeared at the project at about 2 o'clock in the morn- ing with a number of pickets. In spite of their protests to Padula, the de- liveries were made. Although telegrams had, in the meantime, been sent by the Mediation Board to the union representatives and to Padula, postponing the scheduled meeting on June 1 from 9 a. in. to 2 p. m., O'Horo and Holzlohner had not yet received them and therefore they went together to the Mediation Board's office at 9 a. m. to inform the Mediation Board and Padula that, because of the delivery of materials that morning, the Unions rejected the 6-point settlement. Finding no one at the office, Holzlohner telephoned this notification to Yauch 27 No further meetings to attempt to. settle the dispute between Fairmount and the Unions were held and the picketing continued. James Williams, a member of the Carpenters, had been employed by Fair- mount before the cessation of work on May 18. He returned to work for Fairmount as a carpenter during June and worked alongside the nonunion carpenters whom Fairmount had hired. Williams and Superintendent Nick Blenx, who was also a member of the Carpenters, received notices from the Carpenters that they were charged with violation of Section 15 of the Car- penters' Working Rules, . and that hearings would be held in their respective cases on July 9 and June 3. The specifications of the bases of the charges stated in Williams' case, that he had "worked on the job at Ivy Hill, June 11, 21 Since May 30 fell on a Sunday, the following day; Monday , May 31 , was celebrated as Decoration Day. "The undersigned finds it unnecessary to resolve the conflicts of the testimony as to whether O'Horo did or did not inform Padula on Saturday, May 29, of the Carpenters' rejection of the proposed settlement. The problem raised, if any, concerns the good faith of the employer, which , for reasons stated in the next subsection of this Report,.is not in issue. ESSEX COUNTY, VICINITY DIST. COUNCIL OF CARPENTERS, ETC. 993 1948 and has continued to do same with nonunion men" ; in Blenx's case, they stated that he had "worked on job at Ivy Hill with nonunion men from May 18, 1948, after the job was declared open-shop." Failing to appear for these hearings, Williams and Blenx were thereafter notified in letters from the Carpenters that they had been fined and expelled from membership in the Carpenters. 8. Conclusions The only contract proposal made by the Carpenters to Fairmount was that Fairmount accept in full and without change the terms of the Carpenters' existing contract with Associated Contractors. The section of this contract, called the Addendum, provided that "Master Carpenters shall employ, as far as possible and legal, only such journeymen carpenters . . . as are members of the United Brotherhood, carrying a Due Book issued by the Essex County District Council... . ." 28 Laying aside for the moment the reference to legality, this language of the Addendum requires the Employer to hire members of the Carpenters in pref- erence to nonmembers, and to discharge and replace any nonmembers it might have in its employ whenever members become available for hire. A contract be- tween Fairmount and the Carpenters containing the Addendum, therefore, would have obligated Fairmount to recognize membership in the Carpenters as a condition of hire and continued employment whenever members of the Carpenters were available, and thereby to discriminate against nonunion applicants for hire and nonunion employees in the tenure of their employment. Such a contract with the Carpenters would have been illegal under Section 8 (a) (3) of the Act because, contrary to the proviso thereof which permits the execution and performance of only a strictly limited employee-authorized con- tract relating to union membership as a condition of employment, (1) there had been no authorization of the Carpenters' proposed contract by a majority of all the eligible, affected employees in a Board-conducted election pursuant to Section 9 (e) of the Act, and (2) the Carpenters' proposed contract would have made union membership a condition of original hire and of continued employ- ment from the beginning of employment and not merely, as the proviso permits, "on or after the thirtieth day following the beginning of employment or the effective date of such agreement, whichever is later" 29 Counsel for the Carpenters points to the language of the Addendum and also of the general similar provision of Article X 2° of the contract proposed by the Carpenters, that any illegal provision of the contemplated contract would be ineffective. He argues from this language, in substance, that since any illegal employment preference provision would thus, in any event, be ineffective, its proposal by the Carpenters cannot be held to have been improper or illegal. This argument is rejected. Speaking of the effect of a similar nullity clause upon an illegal union-shop clause, the Board said in Reading Hardware Corpora- tion (85 NLRB 610) : ... Nor are the union-shop provisions of the contract rendered ineffective by virtue of [the nullity clause]. In the absence of a specific clause ex- 28 See also Section 5 of the Working Rules which were incorporated in the contract by reference . This Working Rule contains language identical with that of the quoted portion of the Addendum, except that the words "and legal" are omitted. 29 See Daniel Hamm Drayage Company, Inc., 84 NLRB 458, for a discussion of the general scope of the proviso to Section 8 (a) (3) of the Act. As to the illegality of preferential hiring arrangements , see Hawley & Hoops, Inc., 83 NLRB 371 ; Morley Manufacturing Company, 83 NLRB 404. 30 See footnote 12, above. 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pressly deferring application of the union-shop provision, we believe that this clause can only be construed to mean that, unless and until a tribunal authorized to interpret and administer the law determines that a' particular discharge for nonmembership in the Intervenor is unlawful, the Union-security provisions of the contract are fully effective. Moreover, it is immaterial that, in fact, no action has been taken pursuant to the Union- security provisions, as the' mere existence of an illegal Union-security pro- vision acts as a restraint upon those desiring to refrain from union activities. (Lykens Hosiery Mills, 82 NLRB 981; Unique Art Manufacturing Co., 83 NLRB 1250.) The undersigned therefore finds that in spite of the saving clause, the Carpen- ters' contract proposal was illegal because of its inclusion of a preferential employment provision," and that Padula, while perhaps technically inaccurate in his description of it as a "closed-shop" proposal, quite properly objected to its illegality. In spite of Padula's objections, the Carpenters insisted that he accept and sign the complete form of contract without change. Thus, after Padula had fully stated all his objections in his meeting with the Carpenters' Council on April 6, he received no reply until the form of contract was again sent to him by Secretary Walsack with the repeated request that he sign it. Then, upon his protest, both Business Agent O'Horo and Secretary Walsack told him that the form of contract could not be changed and Walsack said also that if, Fairmount did not sign it, the Carpenters were "going to pull the job." Contrary to the contention of counsel for the Carpenters, the undersigned finds that the cessation of work by the Carpenters which followed on May 1S was a strike and not a lockout, since the carpenters refused to work and the Car- penters' steward explained to Padula that "he had been- instructed, no con- tract, no work." It is true that Padula then told the men that they might continue to work, if they chose, under an "open-shop" agreement, at the lower hourly wage rate paid before April 1, and on a longer workday and workweek.. Whether Padula, by thus unilaterally changing existing terms and conditions of employment, converted the strike from an economic strike into an unfair labor practice strike is not material and, for the purpose of deciding the pres- ent case, the question need not be answered. For the strike had begun in sup- port of the Carpenters' demand, among others, for an illegal preferential em- ployment provision in the contract and it continued in support of the, same demands even though it be assumed that Padula's speech created an additional strike objective, I. e., the establishment of the strikers' right to reinstatement upon the existing terms and conditions of employment until new terms might be agreed upon by their employer and their bargaining representative. The' evidence shows clearly that one of the most important strike issues (if not the most important'in the minds of the contestants) continued to be whether the Carpenters would obtain employment preferences for its members or whether Padula would have his way with an open shop. The "open-shop" sign erected by Padula at the project served to dramatize and give sharp,, un- deniable definition to this point of conflict, as did Business Agent's O'Horo's and Walsack's conversations with Padula during the picketing. Finally, when all the points in controversy were discussed at the mediation board meeting on May 25 in an attempt to end the work stoppage and to reach a general agree- "This ' term is used rather than "closed-shop provision," since strictly speaking, the exclusion of nonmembers from employment was required by the Addendum. in the contract proposal only when members were available for hire. ESSEX COUNTY, VICINITY DIST. COUNCIL OF CARPENTERS, ETC. 995 went; the union group, with Holzlohner as spokesman and Business Agent O'Horo present as the Carpenters' representative, stubbornly opposed Padula's. "open-shop" proposal and the, elimination of the employment preference de- manded by the Carpenters, with the result that, although the union representa- tives tentatively accepted and agreed to submit to their respective organizations. compromises on all other points in the dispute, they stood firm for employment, preference, and Padula was obliged to accept it as the only hope of reaching any- agreement with the union. Although it is thus clear, and the undersigned finds, that the Carpenters in- sisted upon Fairmount's granting illegal employment preference to the point of making it a condition for the reaching of any agreement with Fairmount, and supported this particular demand as well as its other demands with a strike threat and then an actual strike, counsel for the Carpenters asserts that under the facts of the case, the Carpenters did not violate either Section 8 (b) (2) or Section 8 (b) (3) of the Act. He contends, in substance, that the real dispute. between the Carpenters and Fairmount was over wage rates ; that Fairmount raised objections to the Carpenters' employment preference request not because-of' actual opposition to It but merely for trading purposes in resisting the Car- penters' wage demands ; and, finally, that when compromises acceptable to Fairmount on the wage question seemed possible, Fairmount voluntarily con- ceded the employment preference and was not coerced to do so by the Car- penters. Reduced to its simplest terms, the Carpenters' argument is that, by its. insistence upon the preferential employment provision (1) it cannot be held to. have attempted to cause discrimination by Fairmount in violation of Section 8. (b) (2) of the Act because Fairmount was actually. willing to, grant the preferen- tial employment arrangement, and (2) that it cannot be held to have refused to. bargain with Fairmount in violation of Section 8 (b) (3) of the Act because of, Fairmount's bad faith in raising insincere objections to the preferential employ- ment provisions. The undersigned rejects both of these arguments. As the. Board has recently held, neither the good faith of the employer 3: nor its willing- ness to accede to the illegal demands of a union u is in issue in this type of case, where the question is solely whether a union has violated the Act through its. insistence upon an illegal contract. In conclusion, the undersigned finds that (1) the Carpenters demanded and, insisted upon Fairmount's signing and accepting a contract making membership, in the Carpenters a condition of employment whenever carpenter members were. available for hire; (2) in support of this demand, the Carpenters threatened. a strike and did strike at Fairmount's Ivy Hill project; (3) in negotiations. for, a settlement of the strike and a general agreement, the Carpenters refused, to consider any agreement which did not include the illegal preferential employ- ment, provision sought by it; (4) by the foregoing action, the Carpenters, in violation of Section 8 (b) (2) of the. Act, attempted to cause Fairmount to, discriminate against employees in violation of Section 8 (a) (3) ; and (5),. by the foregoing action, the Carpenters, in violation of Section 8 (b) (3) of the Act, also refused to bargain collectively with Fairmount 84 . s American Radio Association , 82 NLRB 1344. 33 International Typographical Union and the Baltimore Typographical Union Number 12, 87 NLRB 1215 , footnote 10. 34 International Typographical Union and the Baltimore Typographical Union No. 12,. 87 NLRB 1215 ; National Maritime Union, 78 NLRB 971 Amalgamated Meat Cutters, 81 NLRB 16i; United Mine Workers, 83 NLRB 916; American Radio Association, 82 NLRB. 1344 ; International Typographical Union (ANPA), 86 NLRB 1041; H. Milton Newman, 85 NLRB 725. 961974-52-vol. 95-84 996 . DECISIONS .OF. NATIONAL LABOR RELATIONS BOARD B. Restraint'and coercion The picketing by the Carpenters and the other unions occurred principally on Midland Place, in an 1,180-foot block between two thoroughfares : Mt. Vernon Place on the north and Irvington Avenue on the south. Midland Place was a 30-foot gravel street. By the time of the picketing, Fairmount had almost completed all the buildings along the entire east side of the block and was engaged in the earlier stages of construction of 10 two-family homes on the southernmost 300-foot portion of the west side of the block. Not only was material for use in this latter group of houses piled on the lots, but cement and lumber had also been deposited part way into the westerly portion of the street bed. The project also extended east and west of Midland Place. Fairmount had its office and had already completed homes on Norman Road, which was imme- diately to the east of, and parallel to, Midland Place. The portion of the project to the west of Midland Place, on which Fairmount had not yet begun construc- tion, extended uphill roughly 325 feet to. the property line of a hospital. In this area, Fairmount had laid out but had not yet improved or opened, a 30-foot street known as Tuxedo Parkway, which was also parallel to Midland Place. Deliveries of material to the construction underway on Midland Place were niade by way of Mt. Vernon Place or Irvington Avenue. Fairmount's employees came to work from Mt. Vernon Place or Irvington Avenue. They then either came along Midland Place to the building site, or, parking their cars in the area designated for Tuxedo Parkway, crossed the lots to Midland Place. As has been found, on May 19, the first day of the picketing, there were 200 or 300 pickets, including 15 or 18 members of the. Carpenters, and Carpenters' Sec- retary Walsack and Business Agents O'Horo and Swanson. Among the officials of other unions who were also present were Holzlohner (president of the Build- ing Trades Council and business agent of Bricklayers' Local 16), Vohdin (vico president of the Building Trades Council and business agent of the Lathers' Local), Jack Lee (an officer of the Building Trades Council and business agent of the Plumbers' Local), Fox (secretary of the Building Trades Council and business agent of the Tile Setters), and Cusano (business agent of the Teamsters' Local). During that day, these 200 or 300 pickets walked, from 4 to 6 abreast, back and forth on the street bed and in front of the houses under construction.` On the following day, May 20, the number of pickets remained the same but, upon the request of the police to Holzlohner, they patrolled in single file in front of the houses under construction, marching up one side of the street and down the other. This was thereafter the general course of the picketing. The number of pickets decreased to several hundred in the second week, 75 in the third week, and then tapered off to about 50 in the seventh week or so. 'Picketing was still in process at the time of the hearing. The General Counsel's witnesses testified concerning a number, of acts com- mitted and threats made on the picket line, near the picket line, and also away from the picket line, either by specifically named persons or by persons identified only as being then or just previously on the picket line. There were no denials at the hearing of the material substance of any of this testimony, either from the alleged participants or from bystanders named by the General Counsel's witnesses. Indeed, none of the alleged, named participants even appeared. as'a 6 This finding as to the formation of the pickets in their patrol is made upon the' testimony of Padula to the effect that the pickets spread across the entire street, and also upon the testimony of Sergeant Petroll of the Newark Police Department that they marched in "squad formation ; 4, 5, or 6 abreast." ESSEX COUNTY, VICINITY DIST. COUNCIL OF CARPENTERS, ETC. 997 witness at the hearing although no claim was made by the Carpenters that any of them was unavailable. Consequently, the following findings of fact are made upon the credible, uncontradicted testimony of witnesses for the General Counsel. - (1) As the pickets patrolled on May 19 and 20, they called out to the Fair- mount employees working on the adjoining houses, including laborers,. who were mixing mortar in the box in the street, that they would kill the workers, break their heads, "get their families," and "get" them on the way to the bus line as they went home. In passing the laborers at the mortar box,- the pickets "brushed" against them as they made these threats, and some threw gravel into the mortar and into the faces of the laborers. (2) On May 20 or 21, the pickets threw down a barricade, consisting of a plank set on two oil drums, while Jack Santos, a mason who was mixing mortar, had erected when he saw the pickets' treatment of the laborers. One of the pickets pushed Santos and asked him, "why don't you get out of here?" The pickets then walked all around the box as Santos worked, and threw gravel into the mortar and his face.'6 (3) On May 20 or 21, Lou Schillenbracco, a carpenter, formerly employed by Fairmount, who was known as "Greenberg" to the men, called Dante Campesi, a working carpenter, over to the picket line during lunch time and said, "I'm warning you, you ought to get off the job before you get into a lot of trouble." . (4) On May 20, the pickets in their patrol pointed to Frank Bonanno, a work- ing carpenter, whose picture had been published with a newspaper interview dealing with the strike, and said, "We want you. We're going to get you.,, When Bonanno left work that afternoon, he was followed by six men from the picket line along Irvington Avenue to the corner of Norman Road. One of the men pushed Bonanno, sticking out his foot to trip him at the same time, and said Bonanno was a "wise guy" and that instead of getting his picture in the paper the following morning, he "would wind up in the morgue." (5) During the afternoon of May 24,. while working in one of the houses under construction on the west side of Midland Place, Superintendent Hamm saw three men coming from the picket line and approaching working employees' cars which were parked in the area behind the houses where Tuxedo Parkway was laid out. The three men began breaking car windows with rocks. Hamin, joined by Assistant Vice-President Rohach and employee Campesi, chased the three men up the hill towards the hospital grounds where they caught one of the men, who, upon his arrest, was identified as Business Agent McLaren of the Carpenters. Examination of the parked cars revealed broken windows and windshields, flat tires, broken door locks, and dented doors. The undersigned finds that this damage was done by Business Agent McLaren of the Carpenters and the group of pickets with him " (6) At quitting time about 4: 30 p. in. on May 20, Business Agent Swanson of the Carpenters, accompanied by approximately 20 men, some of whom carried picket signs, told Norman Redman, a working carpenter, as Redman was enter- ing his parked automobile on Midland Place, south of Irvington Avenue, that if '° These findings concerning the mortar box incidents involving Santos are based upon his testimony , according to which O'Horo stood nearby but did not participate. O'Horo testified merely that although he stood there, he saw no stones thrown. 87 These findings concerning the damage done to the parked cars by McLaren are based upon the uncontradicted testimony of Hamm, Rohach, and employees Campesi and Edmonds. As in the cases of the other incidents described in the text, McLaren, the alleged wrongdoing participant, did not testify nor was it claimed by the Carpenters that he was unavailable. 998 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD Redman worked the next day he "would go out stiff" and that Padula would not pay his hospital or funeral expenses . At the . same time, the men with Swanson rocked Redman's car and shouted "turn it over." as (7) At 9: 45 or 10 a. in. of May 19, a lumber company truck with a load of lumber for the project was stopped as it was about to enter Midland Place from: Irvington Avenue by several hundred pickets who spread completely across Mid- land Place. Among those present were Holzlohner, O'Horo, Walsack, Lee, and. Ousano. Holzlohner and O'Horo were on the corner about 25 feet away from the truck, handing out picket signs at the time. One of the pickets jumped on, the running board of the truck and asked the driver if he wanted to be killed.. The driver started the truck slowly, the picket reached in the cab and grabbed the steering wheel, and then, as a motorcycle policeman approached, the picket told the driver that they would kill him if he came through. Upon the police- man's racing his motor, the pickets opened a way and the truck was driven through.0 (8) As has'already been noted, at 4: 30 or 5 a. in,. on June 1, several truck- loads of lumber were delivered to the project on Midland Place where Padula. and a number of Fairmount's employees were waiting to receive them. Two or three hundred pickets, including O'Horo, Walsack, and Volidin were also waiting. Before the truck arrived, O'Horo, Holzlohner, and some.of the union representa- tives told Padula that they were going to kill him, to break him, and to prove to him that nobody was going to get away with an open shop. As the trucks turned into Midland Place, the pickets "milled around in the middle of the .street" and jumped on the trucks. The deliveries were made, however. At approximately 6:30 a. in., as Padula and his employees were unloading the- trucks, the union representatives, including O'Horo, Walsack, and Holzlohner, stood by while Cusano of the Teamsters told Padula they would find his body floating down the Passaic River if he continued to operate the project on an open shop basis.90 (9) On May 24 the pickets told employee Dodge °1 as he drove his truck into, the project, unloaded, and left, that he would be hurt if he pulled into the project again, and that they would "get" him and his helper. . (10) On June 16, while employees were working on the adjacent structures, the pickets at the corner of Midland Place and Irvington Avenue blocked and surrounded Dodge's truck (in which •Padula was riding with Dodge), climbed 38Except for the Identification of Swanson , these findings are based wholly upon Redman ' e uncontradicted testimony . Redman testified that he did not know who the- leader and spokesman of the group was, but that he pointed him out a day or so later to Padula and was told by Padula that it was Swanson . Padula corroborated Redman as to this identification. Although he was thus charged with threatening Redman and was not shown to be unavailable as a witness, Swanson did not appear to testify. It is undisputed that Swanson, like O 'Horo and McLaren , was a business agent of the Carpenters. 39The findings as to this incident are based upon the testimony of Padula . O'Horo- testified merely that at the time this truck entered, be was several hundred feet down the- block. Holzlohner did not testify to affirm or deny Padula ' s version of this incident. 40 These findings as to the occurrences during the June 1 delivery are based upon Padula's testimony. Although both O'Horo and Holzlohner testified as to their appearance at the project that morning and their later trip to the mediation board office, neither one of them described the conduct of the pickets that morning, nor gave any. testimony as to. what conversations, if any, they may have had with Padula. Nor did they directly deny the material substance of any portion of Padula's testimony. O'Horo testified merely that he had first seen Padula that morning at.5 a. in. Holzlohner testified only that he did not arrive at the project until 7. 41 Dodge was hired by Padula to furnish his services and truck -trailer for the.bringing- in of materials . Fairmount furnished the gasoline and a helper to load and unload the trailer. ESSEX COUNTY, VICINITY DIST. COUNCIL OF CARPENTERS, ETC. 999 on the running boards, opened one door and attempted to open the other, tried to pull Padula out of the cab, and told Padula and Dodge that they would be killed. (11) On June 21, while employees were working on the adjacent structures, pickets with nails on short boards moved in front of Dodge's truck as it was leaving Midland Place at Irvington Avenue, and thrust the boards under the tires of the truck, puncturing one of the tires. It is clear that the conduct of the pickets and Business Agents McLaren and Swanson, which has just been described, constituted restraint and coercion of the employees of Fairmount and of other employees engaged in the delivery of material to the Ivy Hill project. That the Carpenters is chargeable with the conduct of its business agents, McLaren and Swanson, described in items 5 and 6 above, is not open to question. Furthermore, upon the evidence concerning the arrangements for the picketing, discussed in part in Section 'l A 6 of this Report as well as in the present section, it appears, and the undersigned finds, that through its cooperation and participation with the other unions in common picketing action under picket captains of the various labor organizations, includ- ing its own business agents and its secretary, the Carpenters cosponsored the .picketing and shared the responsibility for its control;' and that the Carpenters was therefore responsible for the acts of all pickets on or near the picket line, such as those described in items 1-11, inclusive, which were incidental to, the picketing and thus within the pickets' "scope of employment." In all instances, the conduct described in items 1-11, inclusive, was directed specifically against, or at least occurred in the presence of, nonstriking em- ployees of Fairmount or employees of employers delivering materials, and its normal effect was to coerce and restrain these employees in the exercise of their right under Section 7 to refrain from. engaging in the concerted activities of their fellow employees. The undersigned consequently finds that, by the con- duct described in items 1-11 above, the Carpenters, in violation of Section 8 (b) (1) (A) of the Act, restrained and coerced employees of Fairmount and of employers engaged in the delivery of materials to the Ivy Hill project in the exercise,of their right under Section 7 of the Act to refrain from the concerted activities of their fellow employees and to continue working on the project in spite of the strike. Although the undersigned has thus found that the Carpenters has violated Section 8 (b) (1) (A) of the Act in specific instances in which pickets actually threatened and physically interfered with and obstructed employees in their work, he does not find that the General Counsel has proved the allegation that the Carpenters also violated this section of the Act by "mass picketing" in their gen- eral patrol of Midland Place on May 19. There is no direct-evidence in the record, nor reasonable ground for an inference, that the mere patrol of the pickets on May 19 over a distance of 300 feet on Midland Place, a public street, even though in considerable number and in squad formation, did not permit the employees reasonable and apparently safe areas for passage or that the patrol itself, physically obstructed or tended to intimidate employees in going to, from, or 42 International Longshoremen's and Warehousemen 's Union ( Sunset Line and Twine Company ), 79 NLRB 1487 ; United Furniture Workers of America, CIO ( Smith Cabinet Manufacturing Co., Inc.), 81 NLRB 886; Local 1150, United Electrical Workers of America, 010 (Cory Corporation); 84 NLRB 972; United Furniture Workers of America, CIO (Colonial Hardwood Flooring), 84 NLRB 563. 48 Ibid. See also United Shoe Workers of America , CIO (Perry Norvell Company), 80 NLRB 225. 1000 DECISIONS' OF' NATIONAL LABOR RELATIONS BOARD about their work at the project " The undersigned therefore does not find the patrolling of the street by the pickets on May 19 to have been restraint or coercion within the meaning of Section 8 (b) (1) (A) of the Act. There was evidence also of other incidents which the undersigned, contrary to the contentions of the General Counsel and Fairmount, does not find to be restraint or coercion attributable to the Carpenters. Briefly stated, these incidents were the following : Truck drivers George Walker and Bertram Dodge testified that each of them was followed in cars by men who left the picket line when they drove from the project to get materials, and that stones were thrown on different occasions by the men in the following cars, damaging Walker's truck and injuring Dodge. Dodge identified only Joseph Insabella, an official of the Laborers, as having thrown the stones at him. Walker did not identify any of his followers but testified that on one occasion as he left the project and was followed, he saw O'Horo motion to some of the pickets and.that they then got into their car and followed him. The undersigned, however, credits O'Horo's denial that he motioned to the pickets for that purpose or that he ever gave any instructions that pickets were to follow trucks to or from the project. The undersigned finds no basis for holding the Car- penters responsible for these incidents in the absence of evidence that the Carpen- ters authorized the action, since, occurring as they did away from the picket line, the acts were clearly not within the scope of employment of. the pickets for whom the Carpenters, upon the present record, was responsible. Foreman Cocuzza testified that, as-he was crossing Midland Place in the presence of some of the laborers, he was almost run down by an automobile driven by a man who said, as he passed, that he intended to kill Cocuzza. Cocuzza was unable to identify the driver ; nor could he testify that he saw this man come from the picket line. The undersigned cannot find upon this testimony that the un- identified driver was acting under instructions for the Carpenters or even as a picket within the scope of his employment. Cocuzza further testified that stones were thrown through his window at home at about 12: 30 a. m. on June 22 after he had seen three officers of the Laborers loitering at a saloon across the street during the evening and looking up at Cocuzza's window. Not only does -it thus appear that the suspected wrongdoers were not on the picket line and were officials of another union, but Cocuzza also testified that he had seen them leave their posts in front of the saloon across from his home at 11 p. m., 11/2 hours before his window was broken. The undersigned finds no basis for holding the Carpenters to be responsible for this incident even apart from the fact that Cocuzza was admittedly a foreman and a supervisory employee. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Carpenters, set forth in Section III, above, occurring in connection with the operations of Fairmount, described in Section-I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and lead.to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Carpenters has engaged in unfair labor prac- tices within the meaning of Section 8 (b) (1) (A), Section 8 (b) (2), and Sec- tion 8 (b) (3) of the Act, the undersigned will recommend that it cease and desist 1* See United Shoe Workers of America ( Perry Norvell ), supra; and Local 1150, United Electrical Workers ( Cory Corporation ), supra. . WASHINGTON HARDWARE. COMPANY 1001 therefrom and take certain affirmative action in order to effectuate the policies of the Act. Upon the above findings of fact, and upon the entire record in the case, the undersigned makes the following : CONcLusIONs OF LAW 1-Essex County and Vicinity District Council of Carpenters, A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. All Carpenters at the Ivy Hill project of Fairmount Construction Company, including weatherstrippers, floorlayers, and linoleum layers, but excluding super- visors as defined in Section 2 (11) of the Act, constitute a unit of employees appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. On or before May 18, 1948, Essex County and Vicinity District Council of Carpenters, A. F. of L., was the exclusive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By demanding from Fairmount Construction Company, and insisting upon, a collective bargaining agreement making membership in its organization or its locals a condition of employment without compliance with the proviso in Section 8 (a) (3) of the Act, and by supporting its demand for such a contractual provision with a threat of strike, a strike, and a refusal to agree to any contract not containing such a provision, Essex County and Vicinity District Council of .Carpenters, A. F. of L., (a) attempted to cause Fairmount Construction Company to discriminate against employees in violation of Section 8 (a) (3), thereby engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act, and (b) also refused as the exclusive bargaining representative of the employees in the aforesaid appropriate unit to bargain collectively with Fair- mount Construction Company, thereby engaging in unfair labor practices within the meaning of Section 8 (b) (3) of the Act. 5. By restraining and coercing employees of Fairmount Construction Company and of other employers engaged in the delivery of materials to the Ivy Hill project, in the exercise of the rights guaranteed in Section 7 of the Act, Essex County and Vicinity District Council of Carpenters, A. F. of L., has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 6. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended order omitted from publication in this volume.] 6 WASHINGTON HARDWARE COMPANY and PAT DARNTON , PETITIONER and WAREHOUSE AND PRODUCE WORKERS , LOCAL 599. Case No.19-RD-35. August 6,1951 Decision and Order Upon a petition for decertification duly filed, a hearing was held before Patrick H. Walker, hearing officer. The hearing officer's rulings made at the hearing, are free from prejudicial error and are hereby affirmed.' 3 At the hearing the Union moved that the petition be dismissed on the ground that the unit requested by the Petitioner was inappropriate . For reasons given in paragraph numbered 3, below , the Union's motion is hereby granted. 95 NLRB No. 122. Copy with citationCopy as parenthetical citation