M. & J. Tracy, Inc.

National Labor Relations Board - Board Decisions

May 13, 1939

12 N.L.R.B. 916 (N.L.R.B. 1939)

In the Matter of M. & J. TRACT, INC. and INLAND BOATMEN'S UNION
Case No. C-594.-Decided May 13, 1939
Shipping Industry-Interference , Restraint , and Coercion : charges of, dis-
missed-Strike-Contract : construed to require respondent to allow only mem-
bers of contracting union to work so long as union was able to furnish such
members ; valid collective bargaining agreement under the proviso of Section
8 (3)-Unit Appropriate for Collective Bargaining : barge captains ; stipulation
as to-Representatives : majority established under peculiar facts of case, only
one labor organization in field at time contract was made, five of 169 barge
captains non-members of union at the time union demanded enforcement of
contract-Discrimination : discharge for non-membership in union, where valid
employment contract requiring membership in union exists , defense as to charges
of discrimination ; charges of , dismissed-Complaint : dismissed.
Mr. Richard J. Hickey and Mr. Gordon T. O'Hanlon, for the
Board.
Phillips, Mahoney d Fielding, by Mr. William E. Goldman and
Mr. Jeremiah T. Mahoney, of New York City, for the respondent.
Mr. William L. Standard and Mr. Max Lustig, of New York City,
for I. B. U.
Mr. Meyer Freedman, of Far Rockaway, N. Y., for Alfred Lund.
Mary Lemon Schleifer, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge 1 duly filed by Inland Boatmen's Union,
herein called I. B. U., the National Labor Relations Board, herein
called the Board, by Elinore Morehouse Herrick, Regional Director
for the Second Region (New York City), issued its complaint, dated
February 7, 1938, against M. & J. Tracy, Inc., New York City, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of
the National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint and accompanying notice of hearing were
1 The original charge was not made part of the record in the case
12 N. L. R. B., No. 95.
916
M. & J. TRACY, INC. 917
duly served upon the respondent, I. B. U., International Longshore-
men's Association, herein called I. L. A., and the Harbor Carriers of
the Port of New York. The complaint alleged in substance that the
respondent had discharged and refused to reinstate eight named
employees 2 because they had joined I. B. U., and that the respondent
had further interfered with rights of self-organization by warning
its employees under threat of discharge and other reprisals to refrain
from becoming members of I. B. U. and to become members of
I. L. A., and by other acts.
Subsequently, a supplemental amended charge was filed by I. B. U.,
copies of which were duly served upon all the parties.
On February 17, 1938, the respondent filed an answer to the com-
plaint, denying that it had discharged the eight named employees
or that it had in any manner engaged in the unfair labor practices
charged in the complaint. The answer affirmatively alleged that the
respondent on March 10, 1937, had entered into a contract with Tide-
water Boatmen's Union, Local 933-1, I. L. A., in which the respond-
ent had covenanted to employ members of said union during the
term of the contract; that the employees alleged to have been dis-
charged had ceased to be members in good standing in Tidewater
Boatmen's Union during the period covered by the contract and
were not therefore entitled to employment by the respondent. The
answer further denied the power or jurisdiction of the Board to
annul or abrogate the contract referred to by virtue of any action it
might take in the case and prayed that the complaint be dismissed.
Pursuant to an amended notice of hearing duly served upon the
parties, a hearing was held in New York City between February 21
and March 11, 1938, before Herman A. Gray, the Trial Examiner
duly designated by -the Board. The Board, the respondent, and
I. B. U. were represented by counsel and participated in the hearing.
During the course of the hearing the Trial Examiner granted a
motion of counsel for the Board that the complaint be dismissed as
to three of the employees alleged to have been discharged; Elie
Gagnon, Albert Wickstrom and Seaman Kennedy. The Trial Ex-
aminer likewise granted motions of counsel for the Board and counsel
for the respondent, respectively, that the pleadings be conformed to
the proof.
The Trial Examiner reserved decision on a motion of counsel for
the respondent that the charges be impounded as proof of perjury.
The motion is hereby denied.
Subsequent to the hearing, a brief was filed by the respondent.
2 Alfred Lund, Albert Wickstrom, Seaman Kennedy , John Philpot , Elie Gagnon , Leonard
Gordon , Edward Castleman, and Henry Werner.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 9, 1938, the Trial Examiner issued and duly served upon
the parties an Intermediate Report. The Trial Examiner found that
the respondent had entered into a valid contract with Tidewater Boat-
men's Union Local 933-1, herein, called Local 933-1, in March 1937;
that respondent had discharged the five employees named in the com-
plaint, as amended, for the reason that they were members of I. B. U.
and/or for the reason that they were not members in good standing of
Local 933-1 at the time of their discharge; that the contract between
the respondent and Local 933-1 did not require the respondent to dis-
charge any persons who were in its employ at the time the contract was
made who were not then members of Local 933-1, nor to discharge
employees then in its employ who subsequently ceased to be members
of Local 933-1; that since the respondent discharged the named em-
ployees solely because of the demands of Local 933-1 and not because
of any desire to encourage or discourage membership in a labor organ-
ization, the respondent had not engaged in the unfair labor practices
alleged in the complaint. The Trial Examiner accordingly granted a
motion made by counsel for the respondent at the hearing on which
decision had been reserved, that the complaint against the respondent
be dismissed.
Exceptions to certain findings of the Trial Examiner were filed
thereafter by both the respondent and I. B. U.
On May 28, 1938, the Board ordered the record reopened for the
introduction of further evidence. On June 9, 1938, the Board issued
an order dismissing objections to a further hearing which had been
filed by the respondent.
Pursuant to notice served upon the parties, a supplemental hearing
was held in New York City on August 4, 1938, before Herman A.
Gray. All of the parties who appeared at the original hearing were
represented by counsel and participated in the supplemental hearing.3
Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues was afforded
all parties at both the original and supplemental hearings. Numerous
rulings on motions and objections to the introduction of evidence were
made by the Trial Examiner during the course of both hearings. The
Board has reviewed these rulings and finds that no prejudicial errors
s The supplemental hearing covered both the instant case and also Matter of M. h J.
Tracy, Inc. and Inland Boatmen 's Union, Case No. R-760, the Board having ordered a re-
hearing in the latter case also . At the beginning of the hearing on August 4, counsel for
the Board incorrectly stated that the two cases had been consolidated . Because of this
statement only one record was made on August 4 and there is no clear demarcation in the
record as to what evidence was adduced for each case . An objection of counsel for Local
933-1 and for I . L. A. to consolidation is without merit in that the cases have never been
consolidated by the Board . Despite this objection , counsel for Local 933-1 and for I. L. A.
made no objection to the use of all testimony which was adduced on August 4, where
relevant , to each case . Since we can conceive of no reason for objection by any of the
parties to the proceeding , we will treat the evidence introduced on August 4 as applicable
to both cases.
M. & J. TRACY, INC. 919
were committed. The rulings of the Trial Examiner made during
the course of the hearings are hereby affirmed.
Subsequent to the supplemental hearing the respondent filed a
supplemental brief.
On September 6, 1938, the Trial Examiner issued and duly served
upon the parties a Supplemental Intermediate Report in which he
reaffirmed the findings and recommendations of the Intermediate
Report, and granted a further motion made by counsel for the respond-
ent during the supplemental hearing, on which decision had been re-
served, to dismiss the complaint. The rulings of the Trial Examiner
dismissing the complaint in both the Intermediate Report and the
Supplemental Intermediate Report for the reasons hereinafter stated,
are hereby affirmed.
Pursuant to permission granted by the Board upon request of coun-
sel for the respondent and counsel for I. B. U. oral argument was
heard by the Board in Washington, D. C., on November 3, 1938. The
Board has also considered the briefs filed by the respondent.
The Board has reviewed the exceptions of both parties to the Inter-
mediate Report. In so far as the respondent's exceptions are con-
sistent with the findings, conclusions, and order set forth below, they
are hereby sustained. In so far as the exceptions of I. B. U. are incon-
sistent with the findings, conclusions, and order set forth below, the
Board finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
M. & J. Tracy, Inc., a New York corporation, is engaged in the
transportation of coal and bulk commodities by water routes. The
respondent operates deep-sea colliers, barges, and tugs between ports
in the State of New York and ports in other States of the United
States.
The controversy which has arisen involves only those employees
of the respondent who are engaged in the operation of barges. A
barge is an unpropelled harbor craft which is towed by a tug. Only
one employee, designated as a barge captain, is employed on each
barge. The respondent owns 229 such barges, approximately 169
of which were in operation at the time of the hearing. These barges
are operated in the New York Harbor between ports in the State of
New York and ports in the State of New Jersey.
The deep-sea colliers operated by the respondent are operated be-
tween ports in the State of New York and ports in Virginia, in the
New England States, and on the Gulf of Mexico.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the respondent is engaged in traffic, transportation;
and commerce among the several States of the United States.
II. THE LABOR ORGANIZATIONS INVOLVED
Inland Boatmen's Union is, properly, International Inland Boat-
men's Union, having been granted a charter in that name by the Com-
mittee for Industrial Organization on November 17, 1937. Interna-
tional Inland Boatmen's Union, is the successor of Inland Boatmen's
Division of the National Maritime Union, which before the creation
of its successor was likewise affiliated with the Committee for Indus-
trial'Organization. International Inland Boatmen's Union has subor-
dinate locals having jurisdiction over various types of employees in
the New York harbor. United Boatmen's Local No. 2, having juris-
diction over employees on unpropelled water craft, is one such subordi-
nate local. Some of the barge captains employed by the respondent,
are members of United Boatmen's Local No. 2. International Inland
Boatmen's Union and United Boatmen's Local No. 2 are labor organi-
zations within the meaning of the Act.
Tidewater Boatmen's Union, Local 933-1, a labor organization, is
a local of International Longshoremen's Association, affiliated with
the American Federation of Labor. Local 933-1, has jurisdiction over
employees on water craft carrying coal and other freight through
the Barge Canal.
Iii. THE ALLEGED UNFAIR L 1BOR PRACTICES
A. Background of the dispute
On January 29, 1936, an agreement relating to the wages and work-
ing conditions of barge captains was entered into by the "Coal Carry-
ing Division of the Harbor Carriers of the Port of New York," herein
called the Association, and Local 933-1. The respondent claims that
it was bound by the terms of this agreement, which provided, inter
alia, "all members of party of second part [Local 933-1] to be given
preference of all work . . ." The agreement became effective April
1, 1936 , and terminated, in accordance with its terms, on March 31,
1937. At the time this contract was executed Local 933-1 was the
only labor organization having members among the barge captains
in the New York harbor.
Prior to March 10, 1937, various officials of Local 933-1 and of
I. L. A. met with a committee of the Association to negotiate a new
contract. These meetings culminated in the signing of a contract
on -or shortly after March 10, 1937,4 to be effective after the termina-
Although the contract is dated March 10, 1937, the record indicates it was not signed
until a few days later.
M. & J. TRACY, INC. 921
tion of the contract executed in 1936. This contract, herein referred
to as the 1937 contract, likewise provided that members of Local
933-1 should be "given preference of all work" but was to be effective
from April 1, 1937, to March 31, 1940, a period of 3 years. The re-
spondent claims to have been bound by the 1937 contract also. On
March 10, 1937, Local 933-1 was still the only labor organization
having members among the barge captains in the New York harbor.
During the summer of 1937, Inland Boatmen's Division of National
Maritime Union, affiliated with the Committee for Industrial Or-
ganization, was formed. Some of the barge captains employed by
the respondent joined the new organization. Beginning in July
1937 delegates of I. L. A. began questioning some of the barge cap-
tains then in the employ of the respondent concerning their union
affiliation, threatening to secure their discharge unless they became
members in good standing of Local 933-1.
Beginning in 1936, and continuing up to October 1937, I. L. A. on
several occasions complained to Glatzmayer, executive vice president
of the Association, and to the respondent that the respondent was
not living up to the terms of the contracts in employing members
of Local 933-1. Sporadic tie-ups of individual barges of the respond-
ent were effected by I. L. A. during this period in an effort to enforce
these demands. The record indicates that the respondent made no
attempt to operate these barges, but allowed them to remain idle
until they were released by I. L. A.
On October 5, 1937, Local 933-1, wrote a letter to the respondent
stating that pursuant to the terms of the contract of March 10, 1937,
members of Local 933-1 were to be given preference of all work and
that the respondent had failed to comply with the contract "in that
you have given employment to persons other than members of our
Union." The letter concluded :
Demand is herewith made upon you to forthwith carry out
each and all of the terms and conditions of said contract on your
part to be performed, and upon failure on your part to do so,
we shall take such steps as we deem proper and necessary to
protect our interests in the premises.
On October 7, 1937, I. L. A. called a 1-day strike which successfully
prevented the respondent from operating any barges during its
duration. The following day, the respondent sent a photostatic copy
of the letter of October 5 and an accompanying letter to each barge
captain in its employ. The accompanying letter stated in part :
While we are not concerned whether you are a member of this
[Local 933-1] or any other labor organization, it nevertheless is
incumbent upon us to observe the conditions of the foregoing
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
existing agreement, by giving preference of employment to mem-
bers of Tidewater Boatmen's Union.
In order that we may comply with the expressed condition
of the agreement . . . we must ask that you immediately provide
us with evidence that you are a member thereof in good standing.
Thereafter, beginning on October 20, 1937, the respondent questioned
each of the barge captains then employed concerning their member-
ship in Local 933-1 and replaced the captains on five barges on the
grounds that the five so displaced were not members in good standing
of Local 933-1.
B. The discharges and refusal to reinstate
1. Alfred Lund
Alfred Lund began working for the respondent in 1932. His em-
ployment record shows that he was employed from December 22,
1932, to May 9, 1933; from June 28, 1933, to March 31, 1934; from
October 11, 1934, to March 2, 1935; from April 11 to April 13, 1935;
from December 9, 1935, to May 3, 1937; and from May 24, 1937,
to the date of his discharge on August 24, 1937. Lund had never
belonged to Local 933-1 and did not join I. B. U.5 until October
4 or 5, 1937, over a month after his discharge.
On August 24, 1937, the barge on which Lund was employed was
laid up for repairs. Lund was told by Leahy, a supervisory employee
of the respondent, that his "time was up," to pack up and get off the
boat and go to the office to get his money. It was the respondent's
usual custom to remove a barge captain from his barge when it was
laid up for repairs or for seasonal slumps in business unless some
other barge, to which he could be transferred, was then available.
Since it is not denied that Lund's barge was laid up for repairs, and
since there is no proof that any other barge was then available, we
find that Lund was not laid off or discharged on August 24, 1937,
for membership or non-membership in any labor organization.
The respondent also customarily reinstated efficient employees on
the same barge when it was put back into service, unless preference
was given to an employee with greater seniority then unemployed.
Lund's barge was laid up for about 1 week. Lund testified that he
requested reinstatement on numerous occasions subsequent to August
24 but that the respondent refused to reinstate him.
There was some attempt by the respondent to show it had not
reinstated Lund because of drunkenness. The admission of Martin,
5Inland Boatmen 's Division of National Maritime Union became International Inland
Boatmen's Union in November 1937. Because it is immaterial , we have made no distinc-
tion between the two, designating each as I. B. U.
M. & J. TRACY, INC. 923
assistant paymaster of the respondent, that he had never seen Lund
intoxicated and that he had never received any complaints in that
regard from the respondent's customers, precludes the possibility that
Lund was not reinstated for this reason. Martin did testify, with no
explanation that Lund was not a satisfactory employee. Such a state-
ment, without explanation, is insufficient proof of the fact, in the light
of Lund's previous employment after lay-offs.
Lund testified that during July and August, McCarthy and Mullins,
delegates of I. L. A., threatened to have him discharged unless he
became a member of I. L. A. He also testified that after he was laid
off McCarthy stated that I. L. A. had had Lund discharged for this
reason. Although witnesses, neither McCarthy nor Mullins denied
having made these statements. In addition, Boerner, paymaster of
the respondent, testified that beginning in September 1937 all em-
ployees hired, including barge captains formerly employed by the
respondent, were required to show they were members in good stand-
ing of Local 933-1. Martin, assistant to Boerner, testified that during
1937, though he could not state the exact time when the practice began,
he called I. L. A. and asked whether or not the applicant was in good
standing, before he placed a man who had been previously employed,
on a barge. We believe it is clear that the respondent failed to reinstate
Lund either on his own barge when repaired or on some other barge
when available, in accordance with its customary practice, for the
reason that Lund was not a member of Local 933-1, and we so
conclude."
2. John Philpot
John Philpot began working for the respondent in 1930 or 1931.
He worked intermittently thereafter for the respondent until October
14, 1937, when he was discharged. During 1937, Philpot was em-
ployed from January 4 to February 14, from February 15 to March
30, on April 22, and from July 10 to October 14. Philpot joined
Local 933-1 in 1922 and continued to pay dues to that organization
until about July 1937. In September 1937, Philpot joined I. B. U.
During the same month Philpot told Mullins, an I. L. A. delegate, that
he would pay no further dues to I. L. A. and surrendered his dues
book to Mullins.
6 The complaint alleges that the respondent discharged Lund on August 24, 1937, be-
cause he had joined I. B. U. ; that the respondent refused to reinstate Lund ; and that by
such discharge and refusal to reinstate the respondent had discriminated in regard to the
hire and tenure of employment of Lund and thereby engaged in unfair labor practices
within the meaning of Section 8 (1) and ( 3) of the Act . For the purposes of this case,
we shall assume that the motion of counsel for the Board, granted by the Trial Examiner,
to conform the pleadings to the proof is sufficient to allow a finding that the respondent
refused to reinstate Lund at some date subsequent to August 24, 1937, because he was
not a member of Local 933-1.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Philpot testified that at the time he was discharged, Boerner stated
that Philpot had merely been relieving another man and that the
respondent was reinstating this employee on the barge on which Phil-
pot had been employed. There was some effort on the part of counsel
for the respondent to establish this defense at the hearing. However,
Philpot testified unequivocably that the employee who replaced him
was not the same employee who had previously been employed on the
barge. The respondent made no effort to prove, which presumably it
could have done by its employment records, that the prior employee
had replaced Philpot on the barge.
The respondent's letter requiring all barge captains to show evi-
dence of their affiliation with Local 933-1, was delivered to Philpot
as well as to all other barge captains employed by the respondent, on
October 8,'1937, 6 days before Philpot was discharged. Although
Boerner admitted that he thereafter questioned all the barge captains
concerning their membership in Local 933-1, he denied that he ques-
tioned any of them prior to October 20 and specifically denied that he
had questioned Philpot. In view of the respondent's demand that all
barge captains furnish evidence of their affiliation with Local 933-1
prior to Philpot's discharge, Philpot's non-membership in Local 933-1,
and the failure of the respondent to adduce any proof that Philpot
was discharged for any other reason, we can only conclude that the
respondent discharged Philpot because he was not a member of Local
933-1.
We find that the respondent discharged John Philpot on October
14,1937, because Philpot was not a member of Local 933-1.7
3: Leonard Gordon and Edward Castleman
Gordon and Castleman were discharged on October 20, 1937.
Gordon began working for the respondent in 1933. His last period
of continuous employment was from September 29, 1936, to the date
of his discharge. Gordon had joined Local 933-1 in February 1936
but had remained a member for only a few months. He joined I. B. U.
on August 6, 1937. On October 20, 1937, when Gordon went to the
respondent's office for his wages, Boerner questioned him about his
union affiliation. Gordon replied he was a member of I. B. U. Accord-
ing to Gordon's testimony, Boerner then asked him if he would join
Local 933-1 and when Gordon refused, Boerner sent a man to his
barge to relieve him. Boerner did not testify directly as to his reasons
7 The complaint alleges that the respondent discharged Philpot , Gordon , Castleman, and
Werner because of their membership in I. B. U. For the purposes of this case , we shall
assume that the motion of counsel for the Board , granted by the Trial Examiner , that the
pleadings be conformed to the proof, was sufficient to amend the complaint to allege that
such persons were discharged because they were not members of Local 933-1.
M. & J. TRACY, INC. 925
for discharging Gordon but admitted that on October 20, 1937, he
began questioning all barge captains concerning their affilication and
relieving those who were not members of Local 933-1. Under these
circumstances we believe it clear that the respondent discharged Gor-
don on October 20, 1937, because Gordon was not a member of Local
933-1, and we so find .8
Castleman was first employed by the respondent from 1907 to
1909. He returned to work for the respondent in 1927, working inter-
mittently up to the time of his discharge. His last period of con-
tinuous employment was from September 1934 to the date of his
discharge. Castleman had been a member of Local 933-1 since 1935
and had paid dues to Local 933-1 in August 1937. Castleman signed
a pledge card on October 4 or '5, 1937; to' become a member of I. B. U.
and testified that on October 20, 1937, when Boerner asked which or-
ganization he belonged to, that he stated he was a member of I. B. U.
and that he refused at Boerner's request to change his affiliation to
Local 933-1. Boerner sent a captain to his barge to relieve him.
Boerner failed to testify directly as to the reason for Castleman's
discharge, other than his testimony, previously mentioned, that he
began replacing barge captains who were not members of Local
933-1, on October 20, 1937. We find that the respondent discharged
Castleman on October 20, 1937, because Castleman was not a member
of Local 933-1.9
There is evidence in the record that in the afternoon of the day
he was discharged, Castleman took his I. L. A. book to Boerner and
offered to show that he was also a member of Local 933-1 but that
Boerner refused to examine the book. In view of our decision we
consider it unnecessary to determine the reason for the respondent's
refusal to reinstate Castleman.
4. Henry Werner
Henry Werner began working for the respondent in 1927. His
last period of continuous employment was from September 2, 1937,
to November 24, 1937, the date of his discharge. Werner was not a
member of Local 933-1 during 1936 or 1937. He joined I. B. U. at
some date prior to his discharge. Boerner admits that he questioned
Werner two or three times concerning his union affiliation, and that
he finally replaced Werner with a member of Local 933-1, when
Werner refused to join Local 933-1.
We find that the respondent discharged Henry Werner on Novem-
ber 24, 1937, because Werner was not a member of Local 933-1.19
8 Footnote 7, supra.
8 Footnote 7, supra.
10 Footnote 7, Supra.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The validity of the 1937 contract
The respondent contends that even if it discharged any of the em-
ployees named in the complaint because of their failure to be or to
remain members of Local 933-1, it was required to do so by virtue
of the 1937 contract, and that this contract constitutes a defense to
the charges that the respondent has engaged in any unfair labor
practices by virtue of such discharges.
Section 8 (3)• of the Act provides that it shall be an unfair labor
practice for an employer to discriminate in regard to hire and tenure
of employment to encourage or discourage membership in any labor
organization , with the qualification that-
... nothing in this Act . . . or in any other statute of the United
States, shall preclude an employer from making an agreement
with a labor organization (not established, maintained, or assisted
by any action defined in this Act as an unfair labor practice) to
require as a condition of employment membership therein, if
such labor organization is the representative of the employees
as provided in section 9 (a), in the appropriate collective bar-
gaining unit covered by such agreement when made.
Section 9 (a) provides that-
Representatives designated or selected for the purposes of col-
lective bargaining by the majority of the employees in a unit
appropriate for such purposes, shall be the exclusive representa-
tives of all the employees in such unit for the purposes of col-
lective bargaining in respect to rates of pay, wages, hours of
employment or other conditions of employment.
No contention is made that Local 933-1 was established, main-
tained, or assisted by any acts defined as unfair labor practices. The
validity of the respondent's defense, therefore, depends upon: (1)
whether the respondent had entered into a contract with Local 933-1
covering an appropriate unit at a time when a majority of the em-
ployees in the unit had authorized Local 933-1 to represent them,
and (2 ) if such a contract was executed whether a proper interpreta-
tion of the contract required the respondent to discharge or refuse
to reinstate the five employees who were not members of Local 933-1
at the time the respondent took such action.
1. The respondent's relation to the 1937 contract
The Harbor Carriers of the Port of New York is a membership
association of companies engaged in general lighterage, cement trans-
portation, coal carrying, deckscow and related and allied industries,
in the port of New York, which was formed in 1933 . The constitu-
M. & J. TRACY, INC. 927
tion and bylaws of the Association indicate that the primary pur-
pose for which the Association was formed was to adopt and assist in
the administration of a code of fair competition for such industries
as it represented under the National Industrial Recovery Act. The
constitution and bylaws provide for the formation of separate divi-
sions of the Association for each industry. According to the testi-
mony of Joseph Glatzmayer, executive vice president, the Association
was continued after the invalidation of the National Industrial Re-
covery Act, without material alterations to its constitution and by-
laws, for the purposes of observing proposed legislation, representing
its members in labor relations, and to promote the welfare of the
industries. The respondent has been a member of the Association
since its inception ; William J. Tracy, vice president of the respond-
ent, has been president of the Association since 1935.
The respondent contends that both by virtue of its membership in
the coal-carrying division of the Association and by virtue of oral
authorization given to Glatzmayer to execute these contracts on its
behalf, the respondent was bound by the 1936 and 1937 contracts. The
record establishes that William J. Tracy was a member of the com-
mittee of the Association which met with the committee of Local
933-1 and I. L. A. to negotiate the 1936 contract. Tracy testified
that he gave Glatzmayer authority to execute this contract on behalf
of the respondent. John A. Lennon, secretary and treasurer of the
respondent, was a member of the committee which negotiated the
1937 contract. Tracy testified that he authorized Lennon to delegate
authority to Glatzmayer to execute this contract on behalf of the
respondent. Lennon testified that such authorization was given to
Glatzmayer.
We think it clear that the respondent did not become a party to
these contracts by virtue of its membership in the Association. The
constitution and bylaws of the Association, even as amended, contain
no provisions authorizing the Association to enter into any contract
on behalf of its members or authorizing any officer of the Association
to execute such a contract. Glatzmayer recognized this incapacity
by testifying that he secured the individual authorization of each
member of the Association to enter into these contracts on their
behalf, because, "I wouldn't take that responsibility of affixing my
signature to an agreement on behalf of our membership, expecting
they would live up to it unless they had agreed and authorized me,
because I fully realize that it would not be binding unless they had
given me their assurance that they would accept the terms and con-
ditions." It is undoubtedly true that the Association or Glatzmayer,
as an officer of the Association, might execute these contracts as
agent for each member of the Association who delegated such author-
ity to the agent. In its answer to the complaint, the respondent
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleges that "on or about the 10th day of March, 1937, respondent,
by and through its duly authorized agent, to wit : Coal Carrying
Division of the Harbor Carriers of the Port of New York and the
said Tidewater Boatmen's Union . . . entered into a collective bar-
gaining agreement by the terms of which, respondent covenanted and
agreed. . . ." We find, therefore, that by virtue of the respondent's
authorization to Glatzmayer to execute this contract on its behalf,
the respondent was bound by the 1937 contract."
Although these contracts purport to be between the Association
and Local 933-1, many considerations impel us to the conclusion that
these contracts are in fact individual contracts between Local 933-1
and each member of the Association who authorized their execution.
The lack of power in the Association to enter into a contract for its
members, Glatzmayer's admission that the Association exercises no
employer functions, and the respondent's answer indicate such a con-
clusion. In addition, the contracts provide that the contracting party
shall furnish certain equipment, pay certain wages, guarantee a
certain number of days employment, and perform other acts which
could only be interpreted as the individual obligations of each assent-
ing employer, and not as the obligations of the Association, named
as the contracting party.
Moreover, the proviso to Section 8 (3) of the Act requires that to
be within the exception, a contract must cover an appropriate bar-
gaining unit. Construed as the agreement of the Association or as
the collective agreement of the members of the Association, the con-
tracts include all barge captains employed by the members of the
Association as an appropriate unit. Construed as the individual
contract of each assenting member, the contracts treat the barge
captains employed by each member of the Association as an appro-
priate unit. Since we find hereafter that the barge captains employed
by the respondent constitute an appropriate bargaining unit, it be-
comes necessary to construe these contracts as the individual contract
of each assenting member, in order to sustain their validity. In con-
formity with the well established principle that a contract capable
of several constructions, should be given the construction which
renders it valid, we construe the 1937 contract to be a contract be-
tween Local 933-1 and each assenting member of the Association.
2. The appropriate bargaining unit
Counsel for I. B. U., for Local 933-1 and I. L. A., and for the
respondent stipulated that the barge captains employed by the re-
spondent constituted an appropriate bargaining unit. We see no
"Although the same conclusions follow, it is unnecessary for us to determine the
attributes of the 1936 contract.
M. d, J. TRACY, INC. 929
reason for not holding such a unit to be appropriate. Although we
have held in certain cases that where a group of employers deal
jointly through an association, the employees of all members of the
association should constitute a single unit,12 such a doctrine has not
been applied where the association has no legal power to contract
for its members and where no employer functions have been delegated
to the association 18
We find that the barge captains employed by the respondent con-
stitute an appropriate bargaining unit and that this is the unit which
is covered by the 1937 contract.
3. Local 933-1 as representing a majority
The evidence which was introduced to prove that a majority of
the barge captains employed by the respondent had designated Local
933-1 to represent them in collective bargaining on March 10, 1937,
consisted of the testimony of McCarthy, business agent of Local
933-1, that so far as he knew all of the respondent's barge captains
were members of Local 933-1 during 1937 except "here and there
an isolated case," and of the testimony of officials of the respondent
that although they had not requested or received proof of the fact
they had presumed all their barge captains were members of Local
933-1 at the time of the execution of both the 1936 and the 1937 con-
tracts. This presumption was stated to be based upon .(1) the fact
there was only one labor organization in the field at the time the con-
tract was executed; (2) the fact that I. L. A. was able at all times to
suspend the respondent's operations; (3) contacts the respondent
had with its employees including its observation of union buttons
worn by the men; and (4) the statements of I. L. A. officials prior to the
execution of the 1936 contract that all of the respondent's employees
were members of the I. L. A. plus the fact that the respondent secured
replacements through I. L. A. subsequent to the execution of the
1936 contract.
It is clear that the respondent was not justified in its conclusion as
based upon some of these facts. Both the respondent's officials and
officials of Local 933-1 called by the respondent as witnesses candidly
12 Matter of Shipowners' Association of the Pacific Coast, at al . and International Long-
shoremen's Association and Warehousemen 's Union, Distract No. 1, 7 N. L. R. B. 1002;
Matter of Mobile Steamship Association, et al. and International Longshoremen's and
Warehousemen's Union, 8 N. L. R . B. 1297; Matter of Admiar Rubber Company and
American Federation of Labor on behalf of Employees of Company , 9 N. L. R . B. 407;
Matter of Monon Stone Company , et al. and Quarry Workers' International Union of
North America, 10 N. L. It. B. 64 ; and Matter of Hyman-Michaels Company , United
Commercial Company Division and International Union of Mine, Mill and Smelter Workers,
Local No. 50, C. I. 0., 11 N . L. R B. 796.
13 Matter of Aluminum Line, et al. and International Longshoremen's and Warehouse-
men's Union, 8 N. L. R . B. 1325; and Matter of F. E. Booth d Company, at al. and
Monterey Bay Area Fish Workers Union No. 23, 10 N L. R. B. 1491.
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admitted at the hearings that all stoppages which had occurred in the
respondent's operations, had been accomplished by the refusal of
tugboat employees, who were members of affiliated locals of I. L. A.,
to haul the respondent's barges and of coal handlers, likewise members
of affiliated I. L. A. locals, to load or unload the barges. The record
indicates no instance during 1936 or 1937 when the respondent's opera-
tions were suspended solely by a refusal of the respondent's barge
captains to work. We believe a more logical inference than the re-
spondent's from stoppages accomplished in this manner, is that I. L. A.
did not control a majority of the respondent's barge captains. We con-
cede, however, that this conclusion, is not necessarily the only conclu-
sion which may be reached on the facts presented.
In addition, there are discrepancies in the testimony of the respond-
ent's witnesses concerning the securing of employees through I. L. A.
during the existence of the 1936 contract. Both Boerner, paymaster
and claim agent for the respondent, and Martin, assistant to Boerner,
hire employees. The record does not show what percentage of hiring
is done by each. Boerner admitted at the hearing that he did not
inquire as a "regular practice" concerning the union affiliation of any
men he hired prior to September 1937.14 Martin testified that 98 per
cent of the barge captains hired in 1936 and 1937 were secured through
I. L. A. The employment records of the five employees named in the
complaint as well as other evidence introduced at the hearings indicate
that employment among the respondent's barge captains is erratic.
Barges are frequently laid up for repairs or for seasonal declines in
business. The respondent normally removes the barge captain from
the barge when it is laid up for either cause and removes his name from
the pay roll. When the boat is returned to service, the respondent,
usually places the same captain on the barge if he is competent and if
no other barge captain with greater seniority is available at that time.
The respondent likewise customarily transfers a competent barge
captain to another available barge when his own barge is laid up for
any reason. Despite some testimony to the contrary, the record estab-
lishes that such returned or transferred barge captains are not con-
sidered new employees. If Martin by his testimony meant that 98
per cent of the barge captains who were hired for the first time during
this period were hired through I. L. A., the testimony is not conclu-
sive since the record does not establish what proportion of the men
working for the respondent during this period were new employees.
If Martin meant that 98 per cent of all barge captains who worked for
the respondent during 1936 and 1937 were secured through I. L. A.,
this testimony is flatly contradicted by the testimony of Boerner as well
14 Werner, although never a member of Local 933-1 , was hired on September 2, 1937,
apparently without being questioned concerning his union affiliation.
ll. & J. TRACY, INC. 931
as other testimony of Martin. Both testified that laid-off employees
were sometimes requested directly by the respondent to return to
work when the new season opened but that generally old employees
came to the respondent's office when they knew barges were being
returned to service and that the respondent, subject to the qualifica-
tions previously stated, gave these men preferepce in employment.15
It is apparent therefore that the respondent adduced no evidence
which established beyond doubt that a majority of the barge captains
employed by the respondent on March 10, 1937, had designated Local
933-1 to represent them, by virtue of respondent's hiring of employees
through I. L. A.
Despite the failure of the respondent or of I. L. A. to introduce evi-
dence which would have definitely established the exact situation
existing in March 1937, we believe that we would be unwarranted in
holding this contract invalid for failure of proof of majority, under
the peculiar facts of this case. As the respondent points out, there
was only one labor organization in the field at the time this contract
was executed and the record conclusively establishes that some sub-
stantial number of the respondent's barge captains were members of
Local 933-1 in March 1937. It is also undoubtedly true that the re-
spondent secured some employees from I. L. A. both before and after
the execution of the 1936 contract. We are also persuaded by the fact
that after the demand of Local 933-1 in October 1937, which was
after the formation of a rival organization, there were only five of the
respondent's 169 barge captains who were not members of Local 933-1.
Under these circumstances, we feel that to hold this collective bargain-
ing agreement invalid would be unwarranted.
We find that the contract executed between Local 933-1 and the
respondent on or about March 10, 1937, was at the time it was executed
a valid collective bargaining agreement within the proviso of Sec-
tion 8 (3) of the Act.
D. Interpretation of the 1937 contract
The only provision in the 1937 contract concerning the union affilia-
tion to be required of any employee of the respondent is the phrase
"All members of party of second part [Local 933-1] to be given pref-
erence of all work . . ." The same provision was incorporated in the
1936 contract.
We believe that the clear meaning of this phrase is that the re-
spondent is required to allow only members of Local 933-1 to work
so long as Local 933-1 is able and willing to supply members to
"Note that the following employees , though not members of Local 933-1, were hired
for the last time on the following dates : Lund-May 24, 1937; Gordon-September 29,
1936; Werner-September 2, 1937.
169134-39-vol. 12-00
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work. The normal preferential hiring contract is familiar to most
labor organizations. The only inference which can be drawn from
the use of the less customary phrase "preference of all work" as con-
trasted with the normal phrase "preference in hiring" is that some-
thing more than the latter more limited type of preference was in-
tended. We believe the word "preference" connotes nothing more
than the explanation attributed to it by I. L. A. officials who ex-
plained that it was used to allow the respondent to secure employees,
who are not members of Local 933-1, in the event Local 933-1 failed
to supply workers. In this respect, the provision does not provide
for a closed-shop contract. Matthew Woll, a vice president of the
American Federation of Labor, who was called as a witness for the
respondent, testified that this identical wording had been used in
many contracts for the sole purpose of preventing the invalidation
of contracts in jurisdictions where closed-shop contracts are illegal.
In addition, the respondent and I. , L. A., the parties to the con-
tract, contend that this is the meaning which was intended.
I. B. U., however, urges that this provision should be properly in-
terpreted as requiring the respondent to give preference to members
of Local 933-1 only when hiring new employees and as not requiring
the respondent to discharge any barge captain in its employ or to
refuse to reinstate a barge captain after a lay-off even though not a
member of Local 933-1 at the time of such discharge or refusal to
reinstate. This is the interpretation which I. B. U. contends was
adopted by the parties at all times prior to October 1937.
• However, the record does not definitely established this fact. Dur-
ing 1936 and 1937, I. L. A. protested alleged violations of this clause
of the contract on numerous occasions. Since the record does not
show in what manner I. L. A. considered the contract to have been
violated, it is just as reasonable to assume that the interpretation now
urged by the respondent is the interpretation which I. L. A. sought
to enforce at the time of these protests.
Some doubt that the parties intended the interpretation now urged
arises by reason of the respondent's employment of Lund and Werner,
neither of whom were members of Local 933-1, at various times when
these contracts were in effect. However, it may be argued that rather
than showing the intent of the parties, such employment constituted
an actual breach of the contracts which Local 933-1 did not choose
to protest."'
In the absence of clear showing of any contrary intent, we interpret
the contract in accordance with its wording as requiring the respond-
I6 The record indicates other breaches . Thus, although the contract provides that
each captain when hired shall be employed for not less than 14 days , Philpot was em-
ployed for 1 day on April 22, 1987.
M. & J. TRACY, INC. 933
ent to allow only members of Local 933-1 to work, so long as Local
933-1 was able to furnish members to work.
E. The application of the contract to the employees named
We have found that the proper interpretation of the 1937 contract
required the respondent to allow only members of Local 933-1 to
work so long as there were available members of Local 933-1. Repre-
sentatives of I. L. A. and of Local 933-1 testified at the hearings that
Local 933-1 had been ready and able at all times to furnish members
to the respondent. Under these circumstances, the respondent was
required by the terms of the contract to refuse to reinstate and to
refuse to continue to employ any person who was not or had ceased
to be a member of Local 933-1 so long as members of Local 933-1
were available. Lund and Werner were not and apparently never
had been members of Local 933-1. Gordon had not been a member
of Local 933-1 since a few months after February 1936. Philpot
and Castleman had been members of Local 933-1 since 1935 or before
and both had paid dues in July or August 1937. According to the
constitution of Local 933-1, a member 3 months in arrears in dues is
considered in bad standing and those 4 months in arrears stand sus-
pended. It is doubtful whether either Philpot or Castleman were
suspended members of Local 933-1 at the time of their discharge in
October 1937 by virtue of arrearages in dues. However, both had
joined or indicated their intention of joining I. B. U. The constitu-
tion of Local 933-1 prohibits dual unionism. In addition, Philpot
had surrendered his dues book to I. L. A. in September and stated
he would pay no further dues, and Castleman had stated to Boerner
on October 30, 1937, that he was then a member of I. B. U. and that
he would not change his affiliation to I. L. A. It is clear therefore
that both Philpot and Castleman by their actions prior to their dis-
charge had indicated their intention not to continue to remain
members of Local 933-1.
The record shows that Werner was replaced by a member of Local
933-1. Lund, Gordon, Castleman, and Philpot were also replaced.
Although the identity and affiliation of the employees who replaced
them are not shown in the record, the evidence indicates that Philpot,
Gordon, and Castleman were discharged and Lund was refused rein-
statement pursuant to the demands of Local 933-1. For this reason
and because members of Local 933-1 were then available for employ-
ment, it is only reasonable to assume that members of Local 933-1
were employed to replace these employees. In addition, Boerner
testified that after September 1937 all employees hired by the respond-
ent, including those previously employed, were required to prove they
were members in good standing of Local 933-1.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since the respondent discharged Philpot, Gordon, Castleman, and
Werner and refused to reinstate Lund for the reason that they were
not members of Local 933-1, in conformity with the provisions of the
1937 contract, the respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8 (1) and (3) of the Act. We
shall, accordingly, dismiss the complaint.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. M. & J. Tracy, Inc., is engaged in commerce within the meaning
of Section 2 (6) of the Act.
2. International Inland Boatmen's Union and Tidewater Boatmen's
Union, Local 933-1, I. L. A., are labor organizations, within the mean-
ing of Section 2 (5) of the Act.
3. The respondent, by discharging John Philpot, Leonard Gordon,
Edward Castleman, and Henry Werner, and by refusing to reinstate
Alfred Lund, has not engaged in unfair labor practices, within the
meaning of Section 8 (3) of the Act.
4. The respondent has not interfered with, restrained, or coerced
its employees in the exercise of the rights guaranteed by Section 7
of the Act, within the meaning of Section 8 (1) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board orders that the complaint
against M. & J. Tracy, Inc., be, and it hereby is, dismissed.
MR. EDWIN S . SMITH , dissenting :
I cannot agree with the majority of the Board in concluding that
the respondent has not engaged in unfair labor practices within the
meaning of the Act.
I believe that in the absence of clear expression in the terms of a
contract the Board should be slow to adopt any construction which
deprives employees of their right to join a labor organization of their
own choosing. The phrase "preference of all work" seems to me
equivocal. The employment of Lund and Werner, who were not
members of Local 933-1, during 1936 and 1937, and the admission
of the respondent that it did not discharge any barge captain, whose
employment was protested by the I. L. A., prior to October 1937,
indicate that the parties never construed the contracts prior to Octo-
ber 1937 in the manner now urged.
M. & J. TRACY, INC. 935
Nor had there been before this date any notification by the respond-
ent to its employees that membership in Local 933-1 was a prerequi-
site of employment . It is consonant with the purposes of the Act,
which are, fundamentally , to protect full freedom of self-organization,
that the terms of a contract , which may result in discharge for non-
membership in the - particular union, should at all times be clearly
understood by all the employees. Otherwise the situation may well
develop, as here, that employees thinking they are free to join some
other union and who have never joined the contracting union find
themselves discharged by the employer for doing the very thing that
the Act says they can do , free from employer interference.
Accordingly , I would hold that the respondent has engaged in unfair
labor practices by discharging Philpot , Gordon, Castleman , and Wer-
ner, and by refusing to reinstate Lund.