Local 420

National Labor Relations Board - Board Decisions

Mar 25, 1955

111 N.L.R.B. 1126 (N.L.R.B. 1955)

1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to that which he would normally have earned from the date of the discrimination
to the date of reinstatement , less his net earnings during such period .3
In view of the nature of the unfair labor practices committed , the commission
by the Respondent of similar and other unfair labor practices may be reasonably
anticipated . The remedy should be coextensive with the threat . It will therefore
be recommended that the Respondent cease and desist from infringing in any manner
upon the rights guaranteed employees in Section 7 of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Woodworkers of America, C. I. 0., is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Randolph
Norris, Willie Harris, and Elry George, thereby discouraging membership in the
above-named labor organization , the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with , restraining , and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
3It will also be recommended that the Respondent furnish the Board or Its agent all
records necessary to determine, accurately, the actual period of each discriminatory layoff
as well as the amount of back pay due.
LOCAL 420, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF
THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES
AND CANADA, AFL, JOHN SMALL, BUSINESS REPRESENTATIVE, A. J.
BREEN, BUSINESS REPRESENTATIVE , AND A. MCHENRY, BUSINESS
MANAGER OF SAID LOCAL and CORNELIUS C. O'BRIEN, JR. and J. J.
WHITE, INC., PARTY TO AN AGREEMENT. Case No. 4-CB-?16.
March 25, 1955
Decision and Order
On November 19, 1954, Trial Examiner Louis Plost issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the General Counsel
and the Respondent filed exceptions to the Intermediate Report and
supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in this
111 NLRB No. 190.
LOCAL 420 1127
case, and hereby adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner with the following additions and modi-
fications :
We do not agree with the Trial Examiner's finding that the Re-
spondents did not discriminate-against Blan F. Porter after February
28, 1954. The record shows, contrary to the Trial Examiner's find-
ing, that the parties stipulated that Porter would have testified that
he proceeded to the Union Hall on March 26, 1954, together with the
other discriminatees and did not receive a work permit from the Re-
spondents. We therefore find that the Respondents discriminated
against Blau F. Porter in violation of Section 8 (b) (2) of the Act
during the period from March 26 to April 12, 1954, at which time the
Respondent resumed issuing permits. Porter did not apply for a
permit on or after April 122
THE REMEDY
In order adequately to publicize both to employers and employees,
including nonmembers of the Respondent Union, that the Respondents
will cease and desist from their unlawful hiring practices, we believe
that they should be required to publish a notice to that effect in a
Philadelphia, Pennsylvania, newspaper of general circulation. Ac-
cordingly, our order will so direct.
We shall also order the Respondents to notify J. J. White, Inc.,
and the persons discriminated against that they have no objections to
the reinstatement of the discriminatees. Any back-pay liability shall
cease to accrue 5 days after the service of such notice 3
The Trial Examiner recommended that the individual Respondents
together with the Respondent Union make whole the discriminatees
for the losses suffered as the result of the discrimination practiced
against them. We do not adopt this recommendation insofar as it re-
quires the individual Respondents to make the discriminatees whole
out of their personal resources. The individual Respondents, who are
business representatives of the Respondent Union, merely acted as
agents for the Respondent Union. We do not think that an order re-
quiring these individuals personally to reimburse the discriminatees
1 Although the record discloses that the Trial Examiner rejected Board's Exhibit No 6
(copy of telegram of J. J. White to the Respondents ' International Union ) it was erroneously
quoted in full in the Intermediate Report . In adopting the Trial Examiner ' s findings, we
have not relied on this rejected exhibit.
The Trial Examiner inadvertently stated that the Respondent , John Small , telephoned
White on March 7 for a meeting and that such meeting was held later that day. The
record shows that these events occurred on April 7 , 1954, and the Intermediate Report is
hereby corrected accordingly
The Intermediate Report is further corrected by adding in paragraph numbered 4 of
the Conclusions of Law the words "in violation of Section 8 (a) (3) of of the Act" after
the words " requiring membership in the Union."
2 The General Counsel did not contend that the Respondents discriminated against Porter
after April 12, 1954
3 Pinkerton's National Detective Agency, Inc., 90 NLRB 205.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the losses suffered by the latter is necessary to effectuate the poli-
cies of the Act. Accordingly, our order requiring reimbursement for
loss of pay and permit fees will be limited to the Respondent Union.
Order .
Upon the entire record in the case and pursuant to Section 10 (e)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents , Local 420, United Asso-
ciation of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL, its officers,
agents, successors , and assigns , and John Small , business representa-
tive, A. J. Breen, business representative , and A. McHenry , business
manager of said Local, shall :
1. Cease and desist from :
(a) Entering into, maintaining , or enforcing any contract, agree-
ment, understanding or practice with J. J. White, Inc., or any other
employer, which requires employees or prospective employees to
obtain job referrals or permits from the Respondent Union as a con-
dition of obtaining employment , excepr to the extent permitted under
the proviso to Section 8 (a) (3) of the Act.
(b) Causing or attempting to cause J. J. White, Inc., or any other
employer to discriminate against employees or prospective employees
in violation of Section 8 (a) (3) of the Act.
(c) In any like or related manner restraining or coercing employees
or prospective employees of J. J. White, Inc., or any other employer
in the exercise of the rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment
as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Cause, at their expense , the notice hereto attached as "Appendix
A"' to be printed in a newspaper of general circulation in Phila-
delphia, Pennsylvania.
(b) Post at the Respondent Union's main office and Union Hall at
Philadelphia , Pennsylvania , copies of the notice attached hereto and
marked "Appendix A."' Copies of said notice , to be furnished by
the Regional Director for the Fourth Region, shall, after being duly
signed by the Union's representative and Respondents Small, Breen,
and McHenry , be posted by the Respondents immediately upon the
receipt thereof , and maintained by them for sixty ( 60) consecutive
S In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
5 See footnote 4, above.
LOCAL 420 1129
days thereafter in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps shall be
taken by the Respondents to insure that such notices are not altered,
defaced, or covered by any other material.
(c) Notify, in writing, J. J. White, Inc., and William Orlando,
William Broussard, Roger L. Trinda]1, Henry L. Collins, Joseph A.
Bradley, James A. Russell, John Bradley, Robert N. Hahn, Earl
Thalwitzer, and Blan F. Porter that they have no objection to the
employment of these employees by the Company.
3. In addition, the Respondent Union shall take the following
affirmative action which the Board finds will effectuate the policies of
the Act :
Make whole William Orlando, William Broussard, Roger L. Trin-
dall, Henry L. Collins, Joseph A. Bradley, James A. Russell, John
Bradley, Robert N. Hahn, Earl Thalwitzer, and Blan F. Porter, for
any loss of pay they may have suffered as a result of the discrimination
against them and for the cost of the permits required of them as a
condition to working for J. J. White, Inc., in the manner set forth in
the section of the Intermediate Report entitled "The Remedy" as
modified herein.'
4. The Respondents shall notify the Regional Director for the
Fourth Region, in writing, within ten (10) days from the date of this
Order, what steps the Respondents have taken to comply herewith.
e Because of the provisions of Section 1 0 (b) of the Act, this order does not extend to
permit fees collected more than 6 months before the filing of the charge.
Appendix A
To ALL EMPLOYERS AND EMPLOYEES OF THE PLUMBING AND PIPEFIT-
TING INDUSTRY IN THE PHILADELPHIA, PENNSYLVANIA, AREA AND TO
ALL MEMBERS OF LOCAL 420, UNITED ASSOCIATION OF JOURNEYMEN
AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF
THE UNITED STATES AND CANADA, 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 enter into, maintain, or enforce any contract,
agreement , understanding, or practice with J. J. White, Inc., or
any other employer, which requires employees or prospective em-
ployees to obtain job referrals or permits from us as a condition
of obtaining employment, except to the extent permitted under
the proviso of Section 8 (a) (3) of the Act.
WE WILL NOT cause or attempt to cause J. J. White, Inc., or any
other employer, to discriminate against employees or prospective
employees in violation of Section 8 (a) (3) of the Act.
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner restrain or coerce
employees or prospective employees of J. J. White, Inc., or any
other employer, in the exercise of the rights guaranteed in Section
7 of the Act, except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization
as a condition of employment as authorized by Section 8 (a) (3)
of the Act.
WE WILL notify , in writing , J. J. White, Inc., and William Or-
lando, William Broussard , Roger L. Trindall, Henry L. Collins,
Joseph A . Bradley, James A. Russell , John Bradley , Robert N.
Hahn , Earl Thalwitzer , and Blan F. Porter that we have no ob-
jection to the employment of these employees by the Company.
WE, the undersigned Union , will make whole the above-named
employees for any losses suffered by them as a result of the dis-
crimination practiced against them and we shall return to them
the fees collected from them for the issuance of permits entitling
them to work for J. J. White, Inc.
LOCAL 420, UNITED ASSOCIATION OF JOUR-
NEYMEN AND APPRENTICES OF THE
PLUMBING AND PIPEFITTING INDUSTRY
OF THE UNITED STATES AND CANADA,
AFL,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
(Signed) ------------------------------
JOHN H. SMALL,
Business Representative.
(Signed) ------------------------------
AUGUSTINE BREEN,
Business Representative.
(Signed) ------------------------------
A. MCHENRY,
Business Manager.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
It having been charged by Cornelius C. O'Brien, Jr., as attorney for certain indi-
viduals that Local 420, United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada, AFL, herein
called the Respondent Union, and John Small, business representative, A. J. Breen,
business representative, and A. McHenry, business manager of said Local, agents
of said Respondent Union, all jointly called the Respondents, have engaged in and
are now engaging in certain unfair labor practices affecting commerce as set forth
LOCAL 420 1131
and defined in the National Labor Relations Act, as amended, 61 Stat. 136, herein-
after called the Act, the General Counsel of the National Labor Relations Board,
on behalf of the Board, by the Regional Director for the Fourth Region, on August
3, 1954, issued a complaint against the Respondents alleging that the Respondents
had engaged in and were engaging in unfair labor practices within the meaning of
Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the Act.
With respect to the unfair labor practices the complaint alleged in substance that,
at all times since November 3, 1953, the Union has been party to an agreement
or understanding with J. J. White, Inc., which requires the Company to hire and to
continue to employ only such plumbers, pipefitters, welders, and related categories
of employees who are members of the Respondent Union or who obtain and con-
tinue to possess a "clearance, referral or permit" from the Respondent Union; that
on or about March 26, 1954, and again on April 30, 1954, the Respondent Union
refused to issue "permits or clearance" to certain employees of the Company to con-
tinue employment with the Company as pipefitters.1
Copies of the complaint, the charge, and a notice of hearing were duly served on
the Respondents and the Charging Party.
Pursuant to notice a hearing was held at Philadelphia, Pennsylvania, October 18
and 19, 1954, before Louis Plost, the duly designated Trial Examiner.
All the parties were represented, their representatives being herein referred to in
the names of the principals. All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, to introduce evidence bearing upon the
issues, to argue orally, and to file briefs, proposed findings of fact, and conclusions
of law, with the Trial Examiner. The parties argued orally, and waived their right
to file briefs, etc.
At the close of the General Counsel's case-in-chief, and again at the close of the
hearing, the Trial Examiner denied motions by the Respondents to dismiss the
complaint.
The Trial Examiner granted motions by the General Counsel and the Respondents
to conform all the pleadings to the proof with respect to spellings , names, places, and
like minor variances.
Upon the entire iecord and from his observation of the witnesses, the Trial
Examiner makes the following-
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Party to the Contract
J. J. White, Inc., herein called the Company, is a corporation duly organized
under and existing by virtue of the laws of the Commonwealth of Pennsylvania
and is engaged at its place of business in Philadelphia, Pennsylvania, in the installa-
tion and maintenance of commercial and industrial plumbing and pipefitting equip-
ment and materials. During 1953 the Company installed commercial and industrial
plumbing and pipefitting in States outside Pennsylvania for which work it received
$150,000 in fees.
II THE RESPONDENTS
Local Union No. 420 of the United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United States and Canada , AFL, is
a labor organization within the meaning of Section 2 (5) of the Act.
John H. Small and Augustine Breen are business representatives of the above-
named Union ; Aloysius McHenry is business manager of said Union.
John H. Small, Augustine Breen, and Aloysius McHenry are and for all times
material herein have been the agents of the above -named Union within the meaning
of Sections 2 (13) and 8 (b) of the Act.
1 The employees alleged to have been discriminated against are :
William Orlando James A Russell
William Broussard John Bradley
Roger L Trindall Robert N Hahn
Henry L. Collins Earl Thalwitzer
Joseph A Bradley Blan F Porter
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
Synopsis
The Respondent Union was a party to and enforced the terms of a contract con-
taining a clause which established an illegal closed shop , under which it referred cer-
tain individuals for employment by "signatory contractors " and refused to refer other
applicants for such employment.
A. The contract
The record clearly discloses that at all times material herein the Respondent Union
and J . J. White, Inc., were under contract with respect to the wages , hours, and con-
ditions of employment of certain categories of employees of White.
This contract was entered into by the Respondent Union and a certain organization
of plumbing and piping contractors known as Air Conditioning , Heating and Plumb-
ing Employers ' Association of Philadelphia , Pennsylvania , and also plumbing and
piping contractors of the area who were not members of the Association. White
was not a member of the Association , but was a party to the contract.
The contract in question 2 contains the following clause:
Article VIII
Section 1. It is agreed that the Signatory contractor shall employ only U. A.
Journeymen and Apprentices who are in good standing and who retain their
good standing in Local Union No. 420 . That the members of Local Union
No. 420 who are in good standing can solicit employment with any contractor.
Such a provision in a labor contract has been held to be illegal as to both the
union and employer signatories who by maintaining a contract containing such a
clause are , on the part of the Union violating Section 8 (b) (1) (A ) and 8 (b) (2)
of the Act , and on the part of the Employer violating Section 8 ( a) (1), (2), and
(3) of the Act.3
The above-mentioned contract closes as follows:
Article XIV
Section 1 . It is not the intention of the parties to this Agreement to violate any
existing federal , state or municipal law or regulation However, should any
article, section , paragraph , sentence , or clause of the within Agreement be held
to be illegal or in contravention or violation of any existing law by a court of
competent jurisdiction , such part or parts shall immediately be held to be in-
operative under this Agreement . All other provisions hereof shall continue to
remain in full force and effect for the duration of this Agreement.
The quoted language does not purge the contract 's illegality . The Board and the
courts have held uniformly that so-called "saving" or "separability" clauses, which
recognize the controlling effect of applicable laws, or which modify union-security
provisions to conform to existing laws with which they may be in conflict, do not
validate agreements containing unlawful restrictions on employment?
There is nothing in the record , moreover , to indicate that the Respondent Union
did not intend to enforce the unlawful employment restriction in the contract.
Indeed, as is more particularly noted hereafter , the record demonstrates that an in-
tention to enforce the provision was in fact carried out in an unlawful manner. Conse-
quently, the Trial Examiner finds that by maintaining in being the contract containing
the cited illegal clause the Respondent Union violated Section 8 ( b) (1) (A) and 8
(b) (2)5 of the Act.
z General Counsel 's Exhibits Nos 2 and 5
See Ebasco Services , Incorporated, 107 NLRB 617 ; N. L R B. v. McGraw and Co.,
206 F. 2d 635 ( C. A. 6).
4 N L R B. v Gaynor News Co., 197 F. 2d 719 (C. A 2 ), 345 U. S . 962 (case restored
to docket foi rearguinent ) , Red Star Express Lines v N L. R B , 196 F. 2d 78 ( C. A 2) ;
Unique Art Manufacturing Co., 83 NLRB 1250; Reading Hardware Corporation , 85 NLRB
610, 611 , Essex County and Vicinity District Council of Carpenters , etc., 95 NLRB 969,
985, 993 ; Green Bay Drop Forge Co., 97 NLRB 642, 643; Gottfried Baking Co., Inc., 103
NLRB 227
5 See Ebasco Services , Incorporated , footnote 3, supra
LOCAL 420 1133
B. Employment under the Contract
James J. White, III, testified that: J. J. White, Inc., was under contract with the
Respondent Union having as its expiration date April 24, 1953; on April 24 the Re-
spondent Union notified the Company by letter that a new contract was not yet
ready for signature, and the Union therefore requested the Company to agree in
advance to any terms that might be reached later, and continue to operate under
the existing contract until such time; the Company so agreed in writing; under date
of July 25, 1953, the Company was notified by the Union that the only change in
any new agreement to be signed would be the wage rate which was given; the Com-
pany agreed to these terms and thereafter operated under its existing contract with
only the wage rate changed; no new formal contract was thereafter signed.
White further testified that under the terms of its contract with the Respondent
Union, the Company had only employed pipefitters who were members of the Union;
that in August 1953 he notified Augustine Breen, one of the business representatives
of the Union, that the Company was in great need of pipefitters on a job at Atlantic
Refinery in Philadelphia and asked if nonunion members might be employed; that
Breen told him that if nonunion member pipefitters were first sent to the Respondent
Union for referral by the Company the Union in turn would refer such applicants to
the Company's Atlantic Refinery job and issue "permits" to work on the job to the
applicants.
White testified:
I asked him, "Could we employ pipefitters other than 420 pipefitters if they
were available?" And he said that the procedure was if there was anyone who
had requested employment and did not have a membership book in Local 420,
that they could be referred to the Local for work and that they would issue
them a work permit to work on whatever job you asked to have them employed
on, and that was the extent of our conversation.
White further testified that thereafter the Company did send applicants to the
Respondent Union for referral, and that permits to work on the Atlantic Refinery job
were issued to them by the Union.
Augustine Breen, Respondent herein, and a business representative of the Respond-
ent Union, testified in a manner which was obviously an attempt to create the im-
pression that he contradicted White, but a reading of his testimony reveals that it
was phrased to evade or conceal and not to give any firm version whatever.
Breen testified:
Q. (By Mr. Markowitz.) Did you ever tell Mr. White, in August of 1953,
or at any time after that, that anybody who wanted work had to get a permit
from the union?
A. No. I can elaborate, if you want it. I mean, I can-
Q. Go ahead.
A. I can say that I may have told Mr. White that they had to be on record
up at the local for our records, or for our welfare and our contributions.
We had to have a check on whether the contractor is paying the right amount.
See, they pay eleven and a half cents an hour for each man working, and if we
don't have a record of the men up there, we have no way of checking whether
the contractor is paying, or not.
Q. I see.
A. I might have told him something to that effect.
Breen did not impress the Trial Examiner as a witness steeped in candor 6 while
White impressed the Trial Examiner as being wholly truthful, therefore the Trial
Examiner accepts White's version of the August conversation between the two men
as being accurate and credits his testimony with respect thereto.
Frank Thalman, foreman of the Company, testified that: Subject to approval of
J. J. White, III, he hires all employees; prior to August 1953 the Company had not
employed any pipefitters who were not members of the Union but that sometime in
August, White informed him that the Respondent Union would permit the employ-
ing of gonunion pipefitters provided they first received referrals and permits from
the Union; thereafter he hired all the individuals named in the complaint as pipe-
fitters for the Atlantic Refining job, and all these men 7 were first sent to the Union's
6 A further discussion and analysis of Breen's testimony appears at a later point herein.
7 The men hired on "permits" were William Orlando, William Broussard , Roger L.
Trindall, Henry L Collins, Joseph A. Bradley, James A. Russell, John Bradley , Robert H.
Hahn, Earl Thalwitzer, and Blan F Porter
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hall as nonunion members, where they received referrals and permits which they
brought to him before being put to work.
Thalman further testified that sometime in August 1953 he took Joseph Bradley,
John Bradley, Robert Hahn, Earl Thalwitzer, and Blan F. Porter to the Union's
hall and talked to Union Business Representative Breen. Thalman testified:
A. I told Mr. Breen that I had five men that were qualified pipefitters, that I
would like to have them to go to work for me for J. J. White at Atlantic Re-
fining Company
Mr. Breen was quite busy. He handed me five cards and said, "Have the
men fill these out." So the men filled the cards out.
Mr. Breen gave the men each a card of some sort, a referral card or some-
thing like that; said to take them downstairs, pay their permit money and then
they would be free to go to work for me.
Q. Pay their permit money and they would be free to go to work for you?
A. That's right.
Q. What is the next thing that you observed?
A. Well, I went downstairs with the men. They paid their money, their
twenty dollars for two weeks, in advance, to work for J. J. White. They were
given a permit. And I proceeded to guide them down to Atlantic Refining and
put them to work.
Thalman testified that thereafter he sent Orlando, Broussard, Trindall, and Collins,
who were nonunion applicants as pipefitters at the Atlantic Refinery job, to the
Respondent Union with notes reading, "Please give this man a permit to work
for J. J. White as a pipe fitter" and when "they came back and showed me the
permit I hired them."
Thalman testified that the men above named renewed their permits to work each
week and continued steadily on the Atlantic Refinery job until March 26, 1954; that
between March 26 (Friday) and'March 29 (Monday) the men informed him they
had been denied permits by the Respondent Union; that he "gave them no counsel,
no advice of any kind", that he had work for them; that he did not lay them off or
discharge them but that on March 29, the men above named did not report for work.
Thalman further testified that he received no word from Blan F. Porter who was
not working March 26, being out sick.
Respondent Breen admitted that Thalman had brought men to him at the Union's
hall; he testified:
Q. Now, did you, at the time he brought you those men, or at any time
from August of '53 to May of '54, tell Mr. Thalman or tell these men that
they had to have a permit in order to go to work?
A. No, I did not.
On cross-examination he admitted that Thalman asked for referral' cards for
various men, and testified further:
Q. Did you send them down to the girl to pay for their permit?
A. Oh, I didn't send them down. I believe-maybe Thaiman took them
down. That's possible. I don't know.
Q. You didn't notify them that they would have to go downstairs to see the
girl with this card, and get a permit?
A. Well, I think that's understood. They all know that.
Q. I am asking you whether you told them?
A. That is customary. I don't know if I told them or not.
* * * * * *
A. They take a card that I give them to Mr. White, that's right. I don't
know what they do with it in between.
On the entire record as a whole the Trial Examiner does not credit Breen and
credits Thalman's testimony that Breen told the applicants to take the card he gave
them "downstairs," pay "permit money," after which they would be "free to go to
work" for White.
James Russell testified that: He was not a member of the Respondent Union;
in November 1953 he applied to Thalman for work as a pipefitter on the Atlantic
Refinery job; Thalman telephoned Breen at the Union's hall and then gave him a
note to Breen, including therein the name of Henry L. Collins at Russell's request;
he and Collins then called on Breen at the Unon's hall; Breen filled out a card for
each of them and then took them "downstairs" to the cashier whom Breen told,
"These men are going to be on permits"; they each paid $20 to the cashier and
each received a permit to work for J. J. White, Inc.; the cashier instructed them to
LOCAL 420 1135
return every 2 weeks to make a new payment and receive a new permit; at the
time the permits were handed to Russell and Collins , Business Representative Breen
remarked to them,
Don't lose these permits because if you lose this permit, you are out of business.
Russell further testified that he took the permit to Thalman and was put to work
on the Atlantic job and continued steadily on this job from November 1953 to
March 26, 1954; each week (the due date having been changed from 2 weeks to 1)
he called at the Union's hall, paid the cashier $10, and received a weekly permit
which was intermittently checked on the job by the Union's job steward.
Respondent Breen testified that he did not know Russell or Collins, that he did
not tell them "if they lost the permits they would be out of business." Breen further
testified:
I may have told them that if they lost their permit, it would present a little
difficulty down in the front office getting it renewed, because when they paid
their permit, they presented their old one, and the girl knew by that that-what
book to sign that in.
Q. (By Mr. Markowitz.) You mean, because of the number?
A. That's right. You see, there's a number. They are numbered serially.
As hereinbefore stated, the Trial Examiner does not consider Breen a credible
witness. Russell seemed an honest and forthright witness. The Trial Examiner
therefore credits the testimony of Russell where in conflict with Breen and finds on
the record as a whole, as well as from his observation of the two men while
testifying, that (a) Breen escorted Russell and Collins to the cashier, and told her
to issue them permits , and (b ) Breen told them , "Don't lose these permits because
if you lose this permit, you are out of business."
Russell further testified that on Friday, March 26, 1954, he and Collins went
to the Union's hall as usual to obtain work permits for the following week; he
tendered his fee to the cashier but was told, "No more permits"; he asked the girl,
"You mean we are out of work?" and was told, "That's it."
On Monday, March 29, he and Collins did not go to work but did report to
Thalman whom they asked for "layoff slips," to file with the Unemployment Com-
pensation Commission in order to qualify for unemployment compensation . Russell
testified:
Q. What did you say to him? (Thalman)
A. "Do we get layoff slips?" He said, "Well, we didn't lay you off." He
said, "It is up to the Union "
The two men returned to the Union's hall and asked Al Mehl, the Union's secre-
tary-treasurer, for "layoff slips " Mehl told them, "Well that will be taken care of
by the contractor."
Russell's testimony with respect to the cashier's refusal to issue him a permit and
the conversation with Al Mehl was corroborated by Robert Hahn.
Russell and the other nine employees named as discriminatees herein 8 thereafter
retained legal counsel who filed the charge in their behalf.
Robert Hahn testified that when he applied to Thalman for work on the Atlantic
Refinery job on August 24, 1953.
Well, he asked me various questions , as to my qualifications , and references.
And he said to me that he would hire me, but he would have to have permission
from the union.
And he said that he would make arrangements with the union to get permits,
because you could not work without permits, that the shop steward wouldn't
let you on the job without-
Hahn arranged to meet Thalman at the Union's hall and did so together with the
two Bradleys, Thalwitzer, and Porter. His testimony corroborated Thalman with
respect to the issuing of the referrals and permits to him and the others.
Hahn testified that he started work the following day and continued working
for White at the Atlantic Refinery job until March 26, 1954. His testimony as to the
refusal of the Respondent Union to issue him and others permits after that date
corroborates Russell.
Thalman testified that on April 7 he was told to come to White's office at 5
p. m.; before going to the office he went into a nearby restaurant where he met John
Small and Aloysius McHenry, a business representative and the business manager
8 See footnote 1, supr a
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Respondent Union, respectively, Small and McHenry asked if he intended
harm to the Union.
And he asked me if I knew that the ten-dollar permit men were suing the
Union. And I believe I affirmed or denied it-I don't recall which-that I was
aware of the situation
He said to me, then, "Didn't you know that those men were to be all off
the payrolls?" or words to that effect, by such-and-such a date. I believe it was
the first of April. I said, "No, I did not. I was notified by no one," that all
I had heard was rumors, but nothing substantial, or no written message or-other-
wise to instruct me to get rid of those men by the first of April.
The three men then went to White's office. According to Thalman the Respond-
ents, McHenry and Small, then asked White if he had knowledge of the suit by the
10 "permit men" and told White, "They should have all been gotten rid of by the
first of April." Following this the union representatives asked what information
had been entered on the Unemployment Compensation forms.9 Thalman testified
that he stated to the group he had told the Company's timekeeper, "I don't know what
to put on them . . . I neither fired or laid the men off, nor did they quit as far as I
know"; the union representatives then asked White to verify what had been written
on the forms when filed; White checked the records and told them that the forms
had been filled out to state that the claimants had been denied work permits by the
Respondent Union and had not been laid off or discharged by the Company. Thal-
man further testified:
Mr. Small and Mr. McHenry-I believe it was Mr. Small done most of the
talking-asked that, if the records could not be altered to show that those men
were laid off by us due to lack of work, and Mr. White denied the collusion,
would not do that, alter the records or say that he had laid the men off.
White testified that about a week before the permit workers failed to report for
work (March 29) he held a telephone conversation with Respondent Augustine Breen
and that Breen informed him in the course of this conversation that "the end of the
privileged fitters" (men working under permits) right to work would be "by the end
of March."
White further testified that on March 29, 1954, all of the Company's nonunion
pipefitters working under permits from the Respondent Union at the Atlantic Re-
finery job failed to "show up."
White testified that Thalman had told him that these men would not appear for
work March 29, passing on the information given him by the men between March 26
and 29; acting on this information White sent the following telegram to the Inter-
national Union, superior to the Respondent Union:
For approximately 14 months we have had permit welders, privileged fitters,
and out of town U. S. pipe fitters on our payroll, due to a shortage of Local 420,
welders and pipe fitters and this condition has existed for over two years on
Friday night 3-26-54 without any notice what so ever approximately 35 permit
welders who were qualified and employed by us were refused a renewal of their
permits by Local 420. This means that on 3-29-54 an entire project that we
are working on will have to be closed down because we can not continue to
prosecute a job without them, and also necessitates laying approximately 75
U. A. out of town pipe fitters further more there are no Local 420 qualified
welders out of work or available at this time and there hasn't been and we're
advised that there won't be any local qualified welders available immediately
therefore due to a pressing job schedule which we are committed to under con-
tract with the Atlantic Refining Co we suggest that the qualified permit welders
that are on our payroll be allowed to continue working till such a time that
qualified welders can adequately and properly be furnished to us awaiting your
usual prompt action and reply.
White further testified that on or about March 7, Respondent John Small tele-
phoned him and asked for a meeting at which Thalman should also be present; he
agreed to a meeting for that evening at 5 o'clock and thereafter met with Respondents
Small and McHenry with Thalman present. The meeting was the one which is the
subject of Thalman's testimony hereinbefore set out.
With respect to the meeting White testified that the Respondent Small first asked
if White was aware of the charge filed with the Board by the 10 men; Small then
9 Used by United States Employment Service
LOCAL 420 1137
pointed out that as "a matter of practice in the trade, that one day you hire and
the next day you fire" to which White replied this was not so in this matter because
the men did not report for work only "because they hadn't had their permits re-
newed"; Small then asked what was given as the reason for separation on the un-
employment compensation reports; he checked the files and told Small and McHenry
the cause was given as "lack of permit"; Small then suggested that White take cer-
tain action because "it would avert a lot of complications if these men were laid off
for lack of work." White testified:
TRIAL EXAMINER: Answer that question. What were you supposed to do?
The WITNESS: Well, I would say the question, or rather the answer that I
was to give was whether or not I would state that these men had been laid off for
lack of work.
According to White he asked for time to consult his attorney and that night he tele-
phoned Breen and told him to inform Small and McHenry that all he would do
would be to "let the facts fall where they may," that the next morning he received
a telephone call from Small regarding which he testified:
I am not certain whether or not Mr. Small said he hadn't seen or talked-
hadn't talked to him. However, he was repeating the question to me and how
did we feel about it at this time? And I told him what I had repeated to Breen
the night before, that it was clear to me that the only thing to do in this matter
was to let the chips fall where they may, and that was all I intended to do on it.
White testified that Small asked him to repeat this for McHenry and "then Mr.
Small remarked, `Well I guess we better issue their permits.' "
On April 12 the men, with the exception of Blan F. Porter, returned to work and
continued to work until April 30, when they again did not report. Since April 30,
1954, the Respondent Union has not referred any "permit men" to the Company.
On direct examination by his attorney Respondent Small testified as follows:
Q. Did you ever tell Mr. White of J. J. White Company, or any representative
of the White Company, that non-union men must have a permit before they could
work?
A. I did not.
Inasmuch as White did not testify Small told him men needed permits to work
but did testify that Breen told him this, it cannot be said that in this answer Small
was not absolutely truthful.
He further testified on examination by the same attorney:
Q. Did you ever tell any of the ten men involved in this case-Orlando, Brous-
sard, Trindall, Collins, Bradley, Russell, John Bradley, Hahn, Thalwitzer or
Porter-that, or did you ever hear any representative of Local 420 tell them
in this time period, that they must have a permit before they could go to work?
A. I never told them, and I never heard any representative of 420 tell them.
Inasmuch as none of the named individuals testified that Small told them they
needed permits , again the truthfulness of Small's answer cannot be challenged.
With respect to the meeting between White, Thalman, Small, and McHenry, dur-
ing the same direct examination Small testified.
Q. Did you tell White during that meeting that these men should have been
gotten rid of by April the 1st, 1954?
A. No, I definitely did not.
But as White's testimony was that the statement had been made by Breen during
a telephone conversation some 2 weeks before, again Small's testimony is perfectly
truthful.
For a final example of the cross- examination technique, Small was asked:
Q. Now, did Mr. McHenry ever ask Mr. White to change any records?
A. Definitely not.
Inasmuch as White had testified that Small, not McHenry, had made this sugges-
tion it is again apparent that Small cannot be found to have been other than a truth-
ful witness with respect to this question.
However, the Trial Examiner cannot say that these questions and answers inspire
him with a high degree of confidence in the defense as made with respect to other
matters in dispute.
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aloysius McHenry, one of the Respondents herein and business manager of the
Union, testified on direct examination by his attorney
Q. Now, Mr. McHenry, did you ever tell Mr. White, or any representative
of the J. J. White Company, that men could not go to work unless they had
a permit from Local 420?
A. No, sir. I did not.
McHenry further testified that between August 1953 and May 1954, he did not
make a similar statement to "any of the men involved in the case, the Charging
Parties."
Inasmuch as none of the General Counsel 's witnesses testified that McHenry had
made any such statements, it remains that if the questions were designed to show
McHenry as telling only the truth, the whole truth, and nothing but the truth, they
served their purpose. ,
In like manner on direct examination McHenry further testified that during the
meeting in White's office, hereinbefore referred to, he did not ask White to alter
the Company's records which showed that the "permit holders" had not been laid
off or discharged by the Company but failed to work because of lack of permits
from the Union. He testified:
Q. Now, did you ever ask Mr. White to change or alter any records of hiss
A. No, they did not. In fact, I believe-
Q. Did you ask him?
A. No.
Q. All right.
White testified that Small made the "alterating suggestion." Small testified that
McHenry had not asked the question. McHenry's testimony of course is designed
to corroborate Small.
McHenry testified that Small and he met Thalman in a restaurant immediately
before the meeting with White. As to any conversation with Thalman, he testified:
Q. Was there any discussion about these ten men?
A. Nothing whatsoever in regard to this case.
Upon his observation of the witnesses and upon the entire record and the evidence
considered in its entirety the Trial Examiner credits Thalman and White and finds
that their accounts of the meeting between themselves and Small and McHenry rep-
resent the accurate version thereof, and further credits Thalman's testimony with re-
spect to his conversation with Small and McHenry in the restaurant prior to the
meeting. The Trial Examiner does not credit the testimony of either Small or
McHenry wherein such testimony is in conflict with the testimony of White and Thal-
man with respect to the meeting in White's office herein referred to.
Russell testified that on April 9, acting on instructions from their attorney, he
and the other of the Company's employees except Blan Porter, denied permits by the
Respondent Union, went to the Union's hall where Respondent Small wrote their
names on 2 pieces of paper, and took them to the cashier, to whom each man paid
$10 and was issued a permit; after receiving the permit he returned to the Atlantic
Refinery job on April 12 and was put to work by Thalman; he renewed his permit
at the Union's hall on April 16 and 23; on April 29 he called for a renewal and was
refused a permit by the cashier.
On April 30 the Union struck certain employers. J. J. White, Inc, was not struck.
Russell testified that on Monday, May 3, neither he nor the other permit holders
reported for work because they had no permits, but went to the Union's hall where
they were all refused permits, that at the hall he overheard Joseph Bradley talking to
Respondent Small. He testified:
Q. Tell us what the conversation was at that time.
A. Well, Mr. Bradley said to him, "What about us?" And he said, "Who?"
He said, "The ten dollar a week men."
Q. Who said "Who?"
A. Mr Small said, "Who?" Mr. Bradley said, "The ten dollar a week permit
men from the J. J. White job." So he said, "Didn't you fellows quit?" He said,
"No, we didn't quit." He said, "Well, you were supposed to." He said, "We
don't have anything to do with you any more "
Hahn testified substantially as did Russell and corroborated the conversation be-
tween Bradley and Small as overheard by Russell.
William Orlando testified without contradiction that on April 30, 1954 (Friday),
he asked the union job steward at the Atlantic Refinery job what would be his status
LOCAL 420 1139
if no permits were issued to him and the others to whom permits had been refused
the preceding day and that the steward told him:
He says, "If you don 't get permits, don 't come back to work."
He says, "Because I can 't let you work without a permit."
So, I said , "Is that for all of us?"
He says, "That 's right , there's no exceptions."
The General Counsel and the Respondents stipulated that Joseph Bradley, John
Bradley, and Earl Thalwitzer would testify as to their employment and permits and
refusals to issue permits as did Robert Hahn ; and further that William Orlando, Wil-
liam Broussard, Henry L Collins, and Roger L. Trindall would testify as did James
Russell with respect to their obtaining employment with the Company and would
testify as did Robert Hahn to events affecting all matters concerning their employ-
ment and permits after March 26, 1954.
The General Counsel and the Respondents further stipulated in effect that Blan
F. Porter worked for the Company under a permit until February 28, 1954, at which
time he stopped work because of illness; on March 29, Porter did not report for
work; he did not apply for a permit on April 9; he did not report for work on April
12, 1954, or at any other time thereafter.
The record is clear that none of the above-named individuals was laid off or dis-
charged by the Company, and that on the days they failed to report as found herein
the Company had work they could have performed and which would have been
given them.
Respondent McHenry testified that the Union sent nonunion men to jobs with-
out permits ; however, on examination by the Trial Examiner he qualified his testi-
mony to be that only nonunion applicants whose ability to do the work was in doubt
were referred without permits to employers to determine first if they were qualified,
but that all qualified nonunion applicants were issued permits before they went to
a job.
Respondent Small testified on the same subject as follows:
Q. (By Mr . Topol ) Did you testify in answer to Mr. Markowitz that in the
period , let's say between August , 1953, and May , 1954, a man could get a job
without either a permit or being a member of the United Association?
The WITNESS : I believe I said yes , he could . If I didn 't, and if you ask me
that question, I'll say "Yes."
Small further testified:
Q. (By Trial Examiner .) Would the union send a non-union man to a
job, without him taking a referral slip from you or a permit from you?
A. I don 't believe we ever had a case like that.
Small further testified that on May 3, 1954 , he saw William Orlando and several
of the other men involved herein at the Union 's hall; Orlando asked him "what he
could do" and:
I said , "Well, do what you want to do . If you want to get a permit , you can
get a permit from the window and go and work for J. J. White."
I then took him over to the window , and I talked to Mrs. Eckman-Marie
Eckman-at the window , to make sure there would be no mistake , since there
had been a claim previously that we had refused permits to these men.
I said , "Marie, this gentleman here or any of these other fellows , if they
request a permit from you, you give it to them."
Small testified that after this he told Orlando "he would tell the rest of the fellows
at the same time."
Orlando denied that Small took him to the cashier on May 3 ; denied that Small
informed the girl there to issue him or the other men permits to work at the
Company.
Marie Eckman , called to corroborate Small, testified that she did secretarial work
at the Union 's hall; on the morning of May 3 Respondent Small, accompanied by
Orlando and "two or three" other men, came to the cashier 's cage where she was
working and told her "that it would be all right to issue permits to these men."
Eckman was quite certain of the occurrence , but in her entire examination she
could only remember this one thing and could answer no other question . Although
she testified that most of the union members were at the hall that day , she could
name none except Orlando , she could not remember any of the others involved
herein, she could not remember Breen having ever come to her window with appli-
344056-55-vol. 111-73
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cants, or Small having been there on another day, she could not recall any of the
men coming for permits on April 29. With respect to such an occurrence she offered
this amazing testimony:
Q. Do you recall them coming up on April 29th, the day before-
A. No.
Q. -and asking for a permit9
A. No. Would they come to me, or go to the office upstairs? [Emphasis
supplied.]
She also testified:
Q. Are you the one who usually hands the employees a permit each week?
A. No There were-I guess at that time there were two other girls besides
myself.
Q. I see.
A. And there was one that most-there was two of them that handled them,
definitely, and I used to help out once in a while, if the line would get too great,
why, I'd help out.
The Trial Examiner is persuaded by the entire record and his observation of Eck-
man on the stand that she may have recalled an occasion when Small came to her
and told her to issue a permit to someone, but the occasion was not May 3 and was
not Small's telling her to issue a permit to Orlando and 2 or 3 others on that day.
The Trial Examiner does not credit Eckman.
The Trial Examiner finds, on the entire record and his observation of the wit-
nesses, that Small did not take Orlando and others to the cashier's cage on May 3,
1954, and there tell Eckman that she might issue him a permit, or that he told
Orlando and others on May 3, 1954, "If you want to get a permit, you can get a per-
mit, you can get a permit at the window and go to work for J. J. White."
Conclusion
It is clear that by contract, membership in the Respondent Union was a condition
of employment by the Company, except that nonmembers could be employed if
first approved by the Union.
Such an agreement is illegal. Because of this system of hiring, nonunion employees
had no alternative but to apply for permits as a prerequisite for obtaining jobs, and
existing members were constrained to retain their memberships to preserve their
opportunity for employment. Whether the end result of the agreements and the
practices ensuing therefrom may be characterized as maintaining a closed shop or
preferential hiring, the arrangement between Union and Company clearly contravened
the provisions of Section 8 (a) (3) of the Act prohibiting a contractual requirement
of union membership as a condition of employment except on or after its 30th day.
It is clear that the alleged discriminatees could obtain and did obtain employment
with the Company only after the Union issued them permits to work. At the time
the Respondent Union refused them permits, realistically the men and the Company
knew they could not work at their jobs. If they had any doubt, the union steward's
statement to Orlando on April 30 would have effectively dispelled it.
The Trial Examiner finds that by executing and maintaining the illegal contract
and by the issuing and refusing to issue permits to work, all as found herein, the
Respondents (the Union, and its agents, Small, Breen, and McHenry) have engaged
in conduct violative of the Act, more particularly Section 8 (b) (1) (A) and (2)
thereof.1o
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of all the Respondents ii set forth in section III, above, occurring
in connection with operations described in section I, above, have a close, intimate,
10 Section 8 (b) (1) (A) and (2) reads
8 (b) It shall be an unfair labor practice for a labor organization or its agents-(1)
to restrain or coerce (A) employees in the exercise of the rights guaranteed in sec-
tion 7 (2) to cause or attempt to cause an employer to discriminate against
an employee in violation of subsection (a) (3) or to discriminate against an employee
with respect to whom membership in such organization has been denied or terminated
on sonic ground other than his failure to tender the periodic dues and the initiation
fees uniformly required as a condition of acquiring or retaining membership.
u Since the Trial Examiner finds John Small, Augustine Breen, and Aloysius McHenry
to be agents of the Union within the meaning of the Act, he intends that they together
with the Union are jointly and severally liable for all unfair labor practices found.
LOCAL 420 1141
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondents have engaged in unfair labor prac-
tices, it will be recommended that each of them cease and desist therefrom and
take certain affirmative action, designed to effectuate the policies of the Act.
It will be recommended that the Respondents cease and desist from discrimination
against employees, as a group or individually, in any like or related manner, with
respect to their hire, employment tenure, or any term or condition of their employ-
ment, except to the extent permitted under Section 8 (a) (3) of the Act.
Since it has been found that the Respondent Union has maintained and enforced
an agreement, understanding, and practices which contain and involve terms and
conditions of employment which are violative of Section 8 (b) (1) (A) and (2)
of the Act, it will be recommended that the Respondent Union cease and desist from
giving effect to the unlawful provisions of its agreements and understandings and
from engaging in unlawful hiring practices thereunder.
Since it is clear that by the discrimination of the Respondents against William
Orlando, William Broussard, Roger L. Trindall, Henry L. Collins, Joseph A. Brad-
ley, John Bradley, James A. Russell, Robert N Hahn, and Earl Thalwitzer, they
have lost employment and incurred losses, it will be recommended that the Re-
spondents make them whole for the losses caused by such discrimination. It will,
therefore, be recommended that Respondents make whole the employees whose
names are listed above for any loss of pay they may have suffered as a result of the
discrimination against them by payment to each of them of a sum of money equal
to that which each would normally have earned as wages but for the discrimination,
less his net earnings during such period, the back pay to be computed in the manner
prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289.
It will further be recommended that in making said individuals whole the Re-
spondents, among other payments, be requited to return to them any fees paid to the
Union in order to obtain permits since the Trial Examiner is convinced and finds such
exactions to have been illegal.
Blan F. Porter
The parties stipulated that Blan F. Porter was not employed by the Company after
February 28, 1954, because he was sick, and further that Porter did not apply for
a renewal of his permit with the others He apparently was therefore not denied
a permit by the Respondent Union together with the others. The Trial Examiner
will therefore recommend that the complaint be dismissed insofar as it alleges the
Respondents discriminated against Porter after March 26, 1954. However, it is
clear that Porter was discriminated against by the Respondent Union from the date
of his employment by the Company under a permit from the Union until the date
he was unable to work because of his illness. The Trial Examiner therefore recom-
mends that the Respondents return to him the money paid by him to the Union
to obtain permits to work at J. J. White, Inc.
The Board has recently held that in order to effectuate the policies of the Act
it may:
[extend] geographically the coverage of cease and desist orders to protect
employees of employers other than those a party to a proceeding where the
respondent unions had committed similar violations against other and unrelated
employers, or had a planned piogram to apply the same techniques to the opera-
tions of other employers, or had committed the unlawful acts during a general
organizational campaign in which such acts [are] typical. However, the Board
has also issued such orders in several recent cases in which there appeared to
be no evidence that the respondent unions had committed similar unfair labor
practices against employers other than those involved in the proceeding. In
most of these cases the unlawful conduct occurred as a result of respondents'
adherence to trade rules, constitution and bylaws, or agreements, which con-
duct might reasonably be expected to be continued against other persons unless
enjoined.
It seems clear that the conduct found herein to be illegal will continue to occur
and is designed to be applied to all the employers under contract with the Respondent
Union which operates in the Philadelphia area. The Trial Examiner believes an
order such as in the recent Teamsters case 12 should be made by the Board; however,
"See International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America, Local 179 (DePrtizao Construction Company ), 110 NLRB 287.
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it will not be recommended that in any other than the particulars herein specified
the contract existing between the Respondent Union and various employers be held
to be void in any Board order.
Upon the basis of the foregoing findings of fact and upon the record as a whole,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. J. J. White, Inc., is engaged in commerce within the meaning of Section 2 (6)
and (7) of the Act.13
2. Local 420, United Association of Journeymen and Apprentices of the Plumb-
ing and Pipefitting Industry of the United States and Canada, AFL, is a labor organi-
zation within the meaning of the Act.
3. At all times material herein Respondents John Small, Augustine Breen, and
Aloysius McHenry were agents of the Respondent Union within the meaning of
Sections 2 (13) and 8 (b) of the Act.
4. By maintaining and enforcing agreements, understandings, and practices which
contain and involve terms and conditions of employment requiring membership in
the Union, the Respondent Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act.
5. By interfering with, restraining, and coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act, the Respondents have engaged in unfair
labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
" See Jonesboro Grain Drying Cooperative, 110 NLRB 481.
T. Roy BUSH AND ROBERT E. STOKES, D/B/A BUSH AND STOKES CO. and
UNITED WHOLESALE & WAREHOUSE EMPLOYEES LOCAL No. 261, RE-
TAIL , WHOLESALE AND DEPARTMENT STORE UNION, CIO, PETITIONER.
Case No.10-RC-2965 . March 25,1955
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National La-
bor Relations Act, a hearing was held before Gilbert Cohen, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.'
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
1 The hearing officer referred to the Board the Employer' s motion to dismiss the peti-
tion because of (1) insufficient showing of interest, (2) alleged unfair labor practices by
the Petitioner, (3) alleged coercion of employees by the Petitioner, and (4) lack of juris-
diction. As to (1), the sufficiency of a petitioner's showing of interest is not litigable at a
hearing on the petition. Moreover, we are administratively satisfied that the Petitioner
has made a sufficient showing As to (2) and (3), evidence as to such matters is not
relevant to a hearing on a representation petition. H. C. Sommer, d/b/a Comwet Com-
pany, 88 NLRB 810. As to (4), the record shows that the Employer, a poultry processor
and wholesaler in Birmingham, Alabama, during the past year sold $284,000 worth of
poultry to a New Orleans, Louisiana, firm, which accepted delivery in Birmingham but
shipped the poultry to New Orleans. Accordingly, we find that it would effectuate the
poi:cies of the Act to assert jurisdiction herein. Frank H. Smith, et at , d/b/a Frank
Smith & Sons, 111 NLRB 241. Cf. Homer Chevrolet Company, 110 NLRB 825. The Em-
ployer's motion to dismiss is therefore denied.
111 NLRB No. 188.