Philadelphia Iron Works, Inc.

National Labor Relations Board - Board Decisions

Mar 16, 1953

103 N.L.R.B. 596 (N.L.R.B. 1953)

596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PHILADELPHIA IRON WORKS, INC. and THEODORE EARL FINK
LOCAL No. 13, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON
SHIP BUILDERS AND HELPERS OF AMERICA , AFL and THEODORE EARL
FINK. Cases Nos. 4-CA-609 and 4-CB-121. March 16, 1953
Decision and Order
On December 9, 1952, Trial Examiner James A. Shaw issued his
Intermediate 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
Intermediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report, and the Respondent Union
filed a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, with the following additions and modifications.
1. We agree with the Trial Examiner that the Respondent Employer
and Respondent Union violated Section 8 (a) (1), (2),2 and (3), and
Section 8 (b) (1) (A) and (2), respectively, by maintaining and
enforcing illegal hiring provisions in their collective-bargaining con-
tract. We find, as did the Trial Examiner, that the agreement is
invalid on its face because it incorporates 3 the Union's "Working Con-
ditions," which unlawfully limit employment to union members,4 estab-
lishing thereby an illegal hiring hall arrangement in which employ-
ment by the Employer was to be limited to applicants who were union
members and were referred by the Union a
i Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [ Members Houston , Styles, and
Peterson].
2 The General Counsel has not excepted to the limited scope of the recommended remedy
where, as here, an 8 (a) (2) violation has been found.
Article 21, section 2 of the agreement provides : "It is further agreed that the working
conditions of Local Lodge No. 13 shall be complied with in conjunction with this Agreement."
Article 14, section 3 designates the union steward as the one who shall see that these
working rules are fully complied with.
I Rule No. 17 of the "Working Conditions" reads : "Only members in good standing shall
be employed on all jobs under the jurisdiction of Lodge No. 13. All such men shall be
hired through the Business Representative of Lodge No. 13."
As the General Counsel has not excepted to the Trial Examiner's finding that other hiring
provisions in the agreement are not illegal, we adopt them without comment.
5 However, we do not adopt the Trial Examiner 's reasoning insofar as it states that
the Respondents ' agreement to condition employment upon the Union 's approval is, without
more, in itself illegal . National Union of Marine Cooks and Stewards, 010 (Pacific Ameri-
can Shipowners Association), 90 NLRB 1099 , 1101; Pacific American Shipowners Associa,
tion, et al., 98 NLRB 582.
103 NLRB No. 65.
PHILADELPHIA IRON WORKS, INC. 597
2. We likewise agree with the Trial Examiner's finding that Re-
spondent Employer, at the demand of Respondent Union, discrim-
inated against Theodore Earl (Ted) Fink by refusing him employment
on September 10, 1951, in violation of Section 8 (a) (1) and (3) and
Section 8 (b) (1) (A) and (2), respectively. In concurring in the
finding of violation on the part of the Union, however, we deem it
unnecessary to rely on certain evidence admitted by the Trial Examiner
over the objections of the Respondents that the evidence was hearsay.6
The record is replete with other evidence which clearly establishes
that the Union demanded that the Employer not put Ted Fink to work.
As cited by the Trial Examiner , Ted Fink testified that the Union's
business agent, Kennedy, threatened him that Kennedy would stop
him from going to work for the Employer because he was not at the
top of the Union's "Out-of-Work" list; and the Union's vice president,
Ryan, testified that about a week later, Kennedy told Ryan that Fink
"went up to [Employer] Philadelphia Iron and tried to get his own
job, but [Kennedy] knocked him back on the list." Indeed, both
Employer Secretary-Treasurer Barr and Vice-President Faix admitted
that the Employer was in fact contacted by the Union. Thus, when
interrogated about a call from Kennedy on September 10,7 Barr related
that about that time he received a call from Kennedy who said, "I
understand [Fair] is in need of men.... If he needs any, you tell
him to get hold of me." 8 Faix admitted that a call was received from
the Union before he placed the call to Ted Fink canceling Fink's em-
ployment, but contended that his son received the call. According to
Faix, the Union "called and said if the Company wanted any men to
call down there." These admissions, together with the above-men-
tioned testimony of Barr and Faix and the abundant evidence that
the Respondents followed the practice of requiring referrals from the
Union's "Out-of-Work" list as a condition of employment, support the
finding that the Union caused the Employer to deny employment to
Fink.
Accordingly, as there was no lawful contractual obligation for the
Employer to limit employment to workmen referred by the Union,
"Foreman Carl Fink , complainant 's brother , testified that he received a telephone call from
Employer 's Vice-President Faix , who told him that he could not put Ted Fink to work
because someone from the Union 's office had called Employer's Secretary-Treasurer Barr,
and told Barr that complainant Ted Fink was not to be put to work . Ted Fink testified
that after being hired on September 10 he got a call from Faix who told him that the
Union 's business agent , Kennedy, had called and told Barr that Ted Fink was not to report to
work . As both items of testimony are admissions by an official of the Employer with respect
to the subject matter in issue, we find that they are admissible evidence against the
Employer and not barred by the hearsay rule . N. L. R. B. v. Chautauqua Hardware Corp.,
192 F . 2d 492 , 494 ; Reeder Motor Company , 96 NLRB 831 ; Wigmore, Evidence, 1 1048.
7 Not September 11 or 12, as inadvertently alluded to by the Trial Examiner.
e Barr admitted that it was not normal for Kennedy to report to him that the Union
had men unemployed and to inquire if work was available.
257965-54-vol. 103-39
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the conduct of the Union in demanding that Ted Fink not be per-
mitted to work and the Employer's compliance with the demand were
in violation of the Act.'
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that :
1. The Respondent, Philadelphia Iron Works, Inc., Philadelphia,
Pennsylvania, its officers, agents, successors, and assigns, shall :
a. Cease and desist from :
(1) Entering into, renewing, or enforcing any hiring provisions in
any agreement with the Respondent Union or any other labor organi-
zation, which requires its employees to join, or maintain their mem-
bership in, such labor organization as a condition of employment,
unless such agreement has been authorized as provided in the Act.
(2) Encouraging membership in the Respondent Union or any
other labor organization of its employees, by refusing to hire appli-
cants for employment unless they are union members in good standing,
or by discriminating in any other manner in respect to the hire and
tenure of employment, or any term or condition of employment.
(3) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist the Respondent Union or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purposes of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all of such activities, except to the
extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized by Section 8 (a) (3) of the Act.
b. Take the following affirmative action which the undersigned
finds will effectuate the policies of the Act :
(1) Offer Theodore Earl Fink immediate employment in accord-
ance with the recommendations set forth in the section of the Inter-
mediate Report entitled "The Remedy."
(2) Upon request, make available to the Board or its agents for
examination and copying all payroll records, social-security payment
records, timecards, personnel records and reports, and all other rec-
ords necessary to analyze the amounts of back pay under the terms
recommended in the Intermediate Report.
9 American Pipe and Steel Corporation, 93 NLRB 54, 56; Utah Construction Co., 95
NLRB 196; Mundet Cork Corporation and Insulation Contractors of Southern California,
Inc., 96 NLRB 1142.
PHILADELPHIA IRON WORKS, INC. 599
(3) Post at its plant in Philadelphia, Pennsylvania, copies of the
notice hereto attached as Appendix A1° Copies of said notice, to be
furnished by the Regional Director for the Fourth Region, shall, after
being duly signed by the Employer's representative, be posted by it
immediately upon the receipt thereof, and maintained by it for sixty
(60) consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Employer to insure that such notices are not
altered, defaced, or covered by other materials.
(4) Notify the Respondent Director for the Fourth Region in writ-
ing within ten (10) days from the date of this Order what steps the
Respondent has taken to comply herewith.
2. The Respondent Local No. 13, International Brotherhood of Boil-
ermakers, Iron Ship Builders and Helpers of America, AFL, and its
officers, representatives, and agents, shall :
a. Cease and desist from :
(1) Entering into, renewing, or enforcing any hiring provisions in
any agreement with the Respondent Philadelphia Iron Works, Inc., or
with any other employer, which require employees to join, or main-
tain their membership in, the Respondent Union as a condition of
employment, unless such agreement has been authorized as provided
in the Act.
(2) Causing or attempting to cause Philadelphia Iron Works, Inc.,
its officers, agents, successors, or assigns, to discharge or otherwise
discriminate against its employees in violation of Section 8 (a) (3)
of the Act.
(3) In any like or related manner restraining or coercing employees
of Philadelphia Iron Works, Inc., its successors or assigns, in the
exercise of the rights guaranteed in Section 7 of the Act.
b. Take the following affirmative action which the undersigned
finds will effectuate the policies of the Act :
(1) Notify the Respondent Philadelphia Iron Works, Inc., in writ-
ing that it does not object to, but on the contrary now requests, that
the Company to employ Theodore Earl Fink in accordance with the
recommendations in The Remedy of the Intermediate Report.
(2) Notify Theodore Earl Fink in writing that it has so advised
the Respondent Philadelphia Iron Works, Inc.
(3) Post at the office of Local 13 in Philadelphia, Pennsylvania,
copies of the notice attached hereto and marked "Appendix B." u
w 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."
u 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."
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of said notice, to be furnished by the Regional Director
for the Fourth Region, shall, after being duly signed by representa-
tives of the Respondent Union, be posted by it immediately upon re-
ceipt thereof and maintained by it for a period of sixty (60) con-
secutive days thereafter in conspicuous places, including all places
where notices to members are customarily posted. Reasonable steps
shall be taken by the Union to insure that such notices are not al-
tered, defaced, or covered by any other materials.
(4) Mail to the Regional Director for the Fourth Region copies
of the notice attached hereto as Appendix B for posting, the Re-
spondent Employer, Philadelphia Iron Works, Inc., being willing,
in places where notices to employees are posted. Copies of said
notice, to be furnished by the Regional Director for the Fourth
Region, shall, after being signed as provided in paragraph 3b (3),
above, be forthwith returned to the said Regional Director for the
said posting.
(5) Notify the Regional Director for the Fourth Region in writing
within ten (10) days from the date of this Order what steps the
Respondent has taken to comply herewith.
The Respondent Philadelphia Iron Works, Inc., and the Respondent
Local No. 13, International Brotherhood of Boilermakers, Iron Ship
Builders and Helpers of America, AFL, and their respective officers,
agents, representatives, successors, and assigns, shall jointly and
severally make Theodore Earl Fink whole for any loss of pay or
earnings he may have suffered because of the discrimination against
him, in the manner and to the extent set forth in the section of the
Intermediate Report entitled "The Remedy."
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT enter into, renew, or enforce any hiring provision
in any agreement with LOCAL No. 13, INTERNATIONAL BROTHER-
HOOD OF BOILERMAKERS , IRON SHIP BUILDERS AND HELPERS OF
AMERICA, AFL, which requires our employees to join, or maintain
their membership in, such labor organization as a condition of em-
ployment, except in accordance with the proviso to Section 8 (a)
(3) of the Act.
WE WILL NOT encourage membership in LOCAL No. 13, INTER-
NATIONAL BROTHERHOOD OF BOILERAKERS , IRON SHIP BUILDERS
AND HELPERS OF AMERICA, AFL, or in any other labor organization,
PHILADELPHIA IRON WORSE, INC. 601
by refusing to hire and employ properly qualified applicants who
are not union members referred by any such union, or by discrimi-
nating in any other manner in regard to their hire or tenure of
employment, or any terms or conditions of employment, except to
the extent authorized by Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees or applicants for employment in
the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist any labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment as authorized in Section 8
(a) (3) of the Act.
WE WILL offer Theodore Earl Fink employment.
WE WILL make Theodore Earl Fink whole for any loss of pay
suffered as a result of discriminatory hiring practices.
All our employees are free to become, remain, or to refrain from
becoming or remaining, members of the above-mentioned union or any
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of the
Act.
PHILADELPHIA IRON WORKS, INC.
By -------------------------------
(Representative)
Dated -------------------- -----------------------------------
(Title)
This notice must remain posted for 60 days from the date hereof and
must not be altered, defaced, or covered by any other material.
Appendix B
NOTICE
To ALL MEMBERS of LOCAL No. 13, INTERNATIONAL BRornzmooD OF
BOILERMAKERS , IRON SHIP BUILDERS AND HELPERS OF AMERIOA,
AFL, AND To ALL EMPLOYEES of PHILADELPHIA IRON WORKS, INC.
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, renew, or enforce any hiring provi-
sions in any agreement with PHILADELPHIA IRON WORKS, INC., or
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with any other employer, which require employees to join, or
maintain their membership in, the Respondent Union as a con-
dition of employment, unless such agreement has been authorized
as provided in the Act.
WE WILL NOT cause or attempt to cause PHILADELPHIA IRON
WORKS, INC., its officers, agents, successors, or assigns, to deny
employment to, or discriminate against, applicants or employees
who are not union members referred by LOCAL No. 13, INTERNA-
TIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS AND
HELPERS of AMERICA, AFL, except to the extent that membership
in a labor organization may be required as a condition of em-
ployment by a valid agreement, as authorized in Section 8 (a)
(3) of the Act.
WE WILL NOT in any like or related manner cause or attempt
to cause PHILADELPHIA IRON WORKS, INC., its officers, agents,
successors, or assigns, to discriminate in any manner against em-
ployees in violation of Section 8 (a) (3) of the Act.
LOCAL No. 13 INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,
IRON SHIP BUILDERS AND HELPERS OF AMERICA, AFL, will make
Theodore Earl Fink whole for any loss of pay suffered because of
the discrimination against him.
LOCAL No. 13, INTERNATIONAL BROTHERHOOD OF
BOILERMAKERS, IRON SHIP BUILDERS AND
HELPERS OF AMERICA, AFL
By --------------------------------------------------
(Representative)
Dated ----------------------- --------------------------------
(Title)
This notice must remain posted for 60 days from the date hereof
and must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Charges and amended charges having been filed by Theodore Earl Fink against
Philadelphia Iron Works, Inc., herein called the Company, and against Local
No. 13, International Brotherhood of Boilermakers, Iron Shipbuilders and
Helpers of America, AFL, herein called the Union, the General Counsel, on July
30, 1952, issued and served upon each of said Respondents a consolidated com-
plaint together with a notice of hearing thereon and an order consolidating both
cases.' The complaint alleged that the Respondents had engaged in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1), (2),
I The Company and the Union are sometimes referred to herein as Respondent Union,
Respondent Company, and the Respondents.
PHILADELPHIA IRON WORKS, INC. 603
and (3) and 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the National
Labor Relations Act, 61 Stat. 136, herein called the Act.
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondents:
(1) At all times since on or about March 12, 1951, have been parties to.
have maintained , and have enforced and are parties to, are maintaining, are
enforcing, an arrangement , understanding , or agreement made by and be-
tween themselves, whereunder for work to be performed within the geo-
graphical jurisdiction of Respondent Union, applicants for employment with
Respondent Employer , as a condition of obtaining such employment, must
be approved for such employment by Respondent Union.
(2) At all times since on or about March 12, 1951, the Union has caused
and attempted to cause and is causing and attempting to cause the Com-
pany to require of applicants for employment with the Company, as a con-
dition of obtaining such employment, approval for such employment by the
Union.
(3) At all times since on or about March 12, 1951, the Employer has re-
quired and is requiring applicants for employment with it, as a condition
obtaining such employment, to obtain approval for such employment from
the Union.
(4) That on or about September 9, 1951 , Theodore Earl Fink , was a mem-
ber in good standing in the Union ; that on or about that date he made
application for employment with the Company ; that on or about September
10, 1951, the Company, through its agents and representatives, offered em-
ployment to said Theodore Earl Fink ; and that on or about September 10.
1951, the Union instructed the employer, through its agents and representa-
tives, not to give employment to Theodore Earl Fink.
(5) Respondent Union did thus instruct the Respondent Company not
to give employment to Theodore Earl Fink , ( a) in order to restrain and
coerce Theodore Earl Fink in the exercise of his right to refrain from con-
fining his search for employment to the out-of-work list maintained by the
Union; and (b) that in order to cause Respondent Company to encourage
membership in, and participation in, the seek -work practices of Respondent
Union.
(6) On or about September 10, 1951, through its agents and representatives,
the Respondent Company withdrew its offer of employment to and refused to
employ Theodore Earl Fink.
(7) At all times since on or about September 10, 1951, Respondent Com-
pany has failed and refused to employ Theodore Earl Fink within the terri-
tory covered by the jurisdiction of Respondent Union ; and that Respondent
Employer by such conduct did thus withdraw its offer of employment from
and did thus refuse to employ Thedore Earl Fink within the territory cov-
ered by the jurisdiction of Respondent Union. (a) In order to interfere
with, coerce, and restrain Theodore Earl Fink in the exercise of his right
to refrain and confining his search for employment to the out-of-work list
maintained by Respondent Union ; and (b ) in order to encourage member-
ship in, and participation in, the seek-work practices of Respondent Union.
(8) That by the totality of the Acts described above the Respondent Union
has engaged in and is engaging in unfair labor practices within the meaning
of Section 8, subsection (b) (1) (A) (b) (2), and Section 2, subsections
( 6) and (7) of the Act.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(9) That by the totality of the Acts described above the Respondent em-
ployer has engaged in unfair labor practices within the meaning of Section
8, subsections 8 (a) (1), (a) (2), and (a) (3), and Section 2, subsections
(6) and (7) of the Act.
In due course the Respondent Employer and the Respondent Union filed their
separate answers in which they in substance denied the commission of any of
the alleged unfair labor practices as set forth in the General Counsel's complaint
in the matter. In addition both deny in their separate answers that "they
have been parties to, have maintained, and have enforced and are parties to,
are maintaining, and are enforcing an arrangement, understanding, or agree-
ment made by and between Respondent Employer and Respondent Union, where-
under, for work to be performed within the geographical jurisdiction of Re-
spondent Union, applicants for employment with Respondent Employer, as a
condition of obtaining such employment, must be approved for such employment
by Respondent Union." 2
Pursuant to notice, a hearing was held in Philadelphia, Pennsylvania, on
August 18, 1952, before the undersigned Trial Examiner, James A. Shaw. The
General Counsel, Respondent Employer, Respondent Union, and the charging
party were represented by counsel who participated in the hearing and were
afforded full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues. At the onset of the hearing
counsel for the Respondent Union moved for a continuance of the hearing for
personal reasons. The motion was denied by the undersigned. Counsel for Re-
spondent Employer also moved to amend his answer to the effect that the
charging party did make application for employment with the Company on or
about September 9, 1951. The motion was granted by the undersigned. At
the close of the General Counsel's case-in-chief and at the close of the hearing
the Respondents, by their separate counsels, moved that the complaint be dis-
missed. The undersigned reserved ruling thereon. The motions are hereby
denied for reasons which will be apparent hereinafter. A motion by the General
Counsel to conform the pleadings to the proof with respect to purely formal
matters was granted. All parties were then afforded an opportunity to argue
orally and to file briefs and/or proposed findings and conclusions. Briefs were
filed with the undersigned by the General Counsel and counsel for the Respond-
ents on or about September 25, 1952. They have been given due and careful
consideration by the undersigned. All parties, though given an opportunity to
do so, waived oral argument before the undersigned. On or about September
10, 1952, the General Counsel filed with the undersigned a "Motion to Correct
Record," accompanied by affidavits of services upon the parties. The motion is
hereby granted by the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FAOT
1. THE BUSINESS OF THE RESPONDENT
Upon the entire record in the case the undersigned finds that the Respondent
Employer, Philadelphia Iron Works, Inc., is a corporation organized and exist-
ing under the laws of the Commonwealth of Pennsylvania, with its principal
office and place of business at D Street and Erie Avenue, Philadelphia, Pennsyl-
vania. It is engaged in the manufacture and erection of steel plate products at
2 Quoted portion from Respondent Union' s answer.
PHILADELPHIA IRON WORKS, INC. 605
and outside its plant at the above address. In the course and conduct of its
operations during the year ending December 31, 1950 , It purchased and/or caused
raw materials such as steel plates, structural shapes, welding rods, and coal
having a value in excess of $200,000 to be purchased, delivered, and transported
to its plant at the above address, of which more than 20 percent in value was
transported to its plant in Philadelphia , Pennsylvania , from points outside the
Commonwealth of Pennsylvania. During this same period of time the Re-
spondent Employer caused finished products, such as steel plate products, valued
in excess of $400,000 to be sold, delivered, and transported from its Philadelphia,
Pennsylvania , plant, of which materials and products approximately 30 percent
of the value thereof was transported from its plant at the above address to
points outside the Commonwealth of Pennsylvania.
From all of the above and upon the record as a whole the undersigned finds
that the Respondent Employer, The Philadelphia Iron Works, Inc., is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local No. 13, International Brotherhood of Boilermakers, Iron Shipbuilders
and Helpers of America, AFL, is a labor organization admitting to membership
employees of the Respondent Company, within the meaning of Section 2 (5) of
the Act.
M. THE UNFAIR LABOR PRACTICES
A. The issues : introduction
As the undersigned sees it the primary issues involved herein are as follows :
(1) Whether or not there was an agreement or understanding between the
Company and the Union whereunder, for work to be performed within the
geographical jurisdiction of the Union, applicants for employment with the
Company as a condition of obtaining such employment must first be approved
for such employment by the Union; and (2) whether or not the Company's
refusal to employ Theodore Earl Fink because he had not been approved for
employment by the Union was violative of the Act.
As indicated above the Company is engaged in the manufacture, fabrication,
and erection of steel plate products , such as the installation of boilers , erection
of smokestacks , and the fabrication of such materials as steel plates , etc. In
order to carry on its business it must have a constant source of skilled work-
men. For the most part it employs boilermakers and persons trained and skilled
in related crafts . The main source of its labor supply is craftsmen who are
members of the Union. The record clearly shows that the craftsmen engaged
in this particular field are strongly organized. In fact the uncontradicted and
undenied testimony in the record shows that approximately 95 to 99 percent
of the craftsmen engaged in the type of work and services performed by the
Company are members of the Union.
The Union in order to properly represent and render service to Its member-
ship must of necessity carry on its affairs in a businesslike manner. In order
to do this it maintains an office in Philadelphia which is supervised by a business
agent . Under his supervision are clerical employees of the Union who handle
such routine matters as the collection of dues, keeping the books of the organiza-
tion, answering the telephone, and handling the usual business that one normally
associates with the offices of any business. At all times material herein John
J. Kennedy , was the business manager or agent , as he is referred to many times
in the record.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As will be shown hereinafter the business agent of the local is an important
functionary. His duties as described in the "Constitution and By-Laws" of the
International Union are as follows : 8
Business Managers
1 Sec. 11. Business Managers may be
2 elected in cities or localities while there
3 are sufficient members to support such
4 an officer. The duties of a Business
5 Manager shall consist of organizing,
6 negotiating, handling grievances under ex-
7 isting agreements, assigning members to
8 work, collecting dues and such other duties
9 as the Subordinate Lodge or the Inter-
10 national President may require. He shall
11 also perform the duties required of him
12 under Sections 15 and 17 of this Article,
13 in the supervision of Auxiliary Lodges.
14 The Business Manager shall be bonded, as
15 provided for in Article XIV of the Inter-
16 national Lodge Constitution, and such
17 bond shall be signed by the Business Man-
18 ager and the President and filed with the
19 President of the Subordinate Lodge.
One of the principal duties of the business agent is to police contracts between
the Union and employers and/or contractors in the territory under the juris-
dictional control of the Union. In the instant case Local No. 13 has geographi-
cal jurisdiction over 41 counties in the eastern part of Pennsylvania, which in-
cludes the city of Philadelphia.
According to the record one of the most important duties of the business
agent is to see that employers with whom Local No. 13 has contractual re-
lations employ only members of the Union in good standing, and that such
employees be assigned to the jobs in accordance with their position on the
"out-of-work" list which is kept in the Union's office. The custom was at all
times material herein for employees to report to the office as soon as a job
was completed and register with one of the clerks in attendance so that his
name would then be placed on the "out-of-work" list. When calls for workers
are received from employers with whom the Union has contractual relations
the business agent or someone under his supervision and direction goes to the
"out-of-work" list and removes the name or names of those who are on top
of the list, and the member or members thus selected are then sent to the job
site . By this process each member on the list gradually reaches the top and
jobs are assigned strictly in accordance with his position on the list. The ob-
vious purpose of this system is to see that each member of the Union gets a
fair "shake," so to speak, as jobs become available. Having thus determined
who is entitled to the job, the business agent or his assistants in the office contact
the member or members so selected either personally, or by telephone, telegraph,
I The undersigned is well aware of the fact that the International Union is not a party to
this proceeding, and reference is made to the International 's "Constitution and By-Laws"
solely for the purpose of showing the responsibilities of one holding the office of business
manager [or "Business Agents," as he is usually referred to in the record by the witnesses
who testified at the hearing herein].
PHILADELPHIA IRON WORKS, INC. 607
or some other means of communication. As indicated above, and as amply
demonstrated in the record, it is the "out-of-work" list and the consequences
which flow from its use by the Union and the Company that is primarily at
issue herein.
According to the record contractual relations between the Company and the
Union were entered into sometime in 1929, and have continued without inter-
ruption to the present time. Prior to the effective date of the amendments to
the Act in 1947, the agreement between the Company and the Union provided for
a "closed shop." With the outlawing of the "closed shop" provision in their agree-
ment by the amendments to the Act, the parties entered into a new agreement
which was still in force at all times material herein. Under this agreement
the parties attempted to meet the requirements of the Act as amended.
An examination of the agreement between the parties shows that it applies to
all of the Respondent Employer's employees in "field construction work (includ-
ing construction, erection, rigging, field fabrication, assembling, dismantling and
repairing performed in the field) coming under the jurisdiction of the Inter-
national Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America,
as set forth in the rulings and agreements with the Building and Construction
Trades."' The agreement thus provides that the Respondent Employer "agrees
to employ only Boilermakers and Helpers in the performance of the work in-
cluded within the scope of this agreement," and the Union agrees to "furnish
competent Boilermakers and Helpers to the contractor. Contractor shall have the
right to determine the competence and qualifications of his workmen and the
right to discharge any employee for any just and sufficient cause, provided, how-
ever, that no employee shall be discriminated against."
As indicated above the Respondents herein operated under a closed-shop agree-
ment from 1929 until sometime in 1947, when a new agreement was entered into.
The new agreement was necessitated by the enactment of the amendments to
the Act in 1947, which inter alia "out-lawed" the closed shop. The new agreement,
which as the undersigned interprets the record is the one with which we are
concerned herein, provided in lieu of the "closed shop" inter alia as follows :
Section 6. When contractor has requested Union to furnish men for a job
and the required number of men are not furnished within a reasonable time,
not to exceed three (3) working days, the Contractor may assign such other
workmen as may be available to perform the required work. Such other
workmen shall be replaced by competent Boilermakers and Helpers when
available and upon reporting to the Contractor. No provision contained in
this language shall provide that non-union workmen may be required to
join the Union.
Section 7. It is agreed that insofar as this agreement is concerned mem-
bership in the Union as a condition of employment will be governed by either
of the following conditions :
(1) If and when the Union has been authorized, under the provisions of
the Labor Management Relations Act, 1947, to make an agreement with the
Contractor requiring membership in such Union as a condition of employ-
ment, such a requirement will be negotiated in the form of a supplement to
and made a part of this agreement :
* The record indicates that the employees in the Company 's shop are represented by the
Union, but are in a separate bargaining unit and hence not covered by the agreement with
which we are concerned herein . The local that represents such employees is designated
as "Local No. 800."
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
OR
(2) In the event existing laws prohibiting the closed shop are repealed,
or the Building and Construction Industry is exempt from the provisions
thereof, the standard closed shop provisions governing membership and hir-
ing through the Union will be negotiated in the form of a supplement to and
will automatically supersede the foregoing sections of this Article and be-
come immediately in effect.
As the undersigned sees it, standing alone, there is nothing illegal in the above
provisions of the agreement. But, they cannot be so considered because the "four-
corners" of the agreement are determinative of the legality or illegality of this
or any other written instrument. Further examination of the agreement shows
that the "working conditions and scale of wages of Local Lodge No. 13 ..."
are, so to speak, incorporated by reference in the body of the agreement.
pertinent language of the agreement in this regard reads as follows :
The
UNIFORM AGREEMENT
ARTICLE 21.
Section 1. There shall be but one agreement, identical in every respect
represented to each and every Contractor erecting work in the jurisdiction
of Local Lodge No. 13.
Section 2. It is further agreed that the working conditions of Local Lodge
No. 13 shall be complied with in conjunction with this Agreement.
Following the above article 21 of the agreement there appears article 22, styled
"Agreement Qualifications," which the undersigned concludes and Ande to be a
"savings' clause," which reads as follows :
AGREEMENT QUALIFICATIONS
ARTICLE 22.
Section 1. It is not the intent of either party hereto to violate any laws or
any rulings or regulations of any Government authority or agency having
jurisdiction of the subject matter of this Agreement and the parties hereto
agree that, in the event any provision of this Agreement is held to be unlaw-
ful or void by any tribunal having the right to so hold, the remainder of this
agreement shall remain in full force and effect, unless the parts so found
to be void are wholly inseparable from the remaining portions of this
Agreement.
Throughout the record and the agreement between the parties there is reference
to the responsibilities, duties, and obligations of the business manager of the
Union and the stewards, who are present at the job site. Since both of these
officials of the Union play an important role in the ultimate findings of the
undersigned, he deems it necessary to set forth herein the pertinent provisions in
the agreement as regards both. It follows below :
DUTIES OF STEWARDS
ARTICLE 14.
Section 1. The Steward's duties shall be to settle any grievance that may
arise on the job, subject to the confirmation of the Business Manager. If
he is unable to do so, the Business Manager shall then be notified and if he
is unable to settle the grievance, he shall notify the International President
of the International Union at once, giving in detail a full report of said
grievance.
PHILADELPHIA IRON WORKS, INC . 609
Section Z. The Steward shall have the authority to examine the cards of all
members of the Union employed on the job as often as he deems necessary.
Section 3. The Steward shall see that the provisions of this Agreement, all
safety rules of the State and working rules of Local Lodge No. 13 are fully
complied with and report any infractions thereof to the Business Manager.
Section 1. The Steward shall not be discriminated against for the discharge
of his duties.
BUSINESS MANAGER AND RESPONSIBILITIES
ARTICLE 15.
Section 1. It is further understood and agreed that Local Lodge No. 13
shall designate the local Business Manager who is duly authorized and will
be consulted on all matters pertaining to the application of this Agreement.
It being specifically understood that the International Union will only be
liable for the acts of said Business Manager when such acts have first been
approved in writing by the International President's office.
Section 2. Under no circumstances shall Job Stewards or any employee
make any arrangement with Foreman or Management that will change or
conflict in any way with any section or terms of this Agreement.
Section S. Nothing contained herein shall be construed as limiting or
abridging the right of the International Union to assign an International
Representative to work with or assist any Local Union, Business Manager
or Contractor in the negotiation or application of the terms and conditions
of this Agreement.
From all of the foregoing the undersigned finds that the "working conditions
and scale of wages of Local Lodge No. 13" are part and parcel of the signed agree-
ment between the Respondents, and was in full force and effect at all times
material herein.
Let us now look to the "working conditions" themselves for further enlighten-
ment as regards the legality or illegality of the agreement. Beginning at page
2 of the "conditions," section No. 6 we find the following:
No. 6. It will be understood that the Business Representative's office in
the localities in which the work is being erected will be notified before the
start of any job, so that the Business Representative can furnish competent
Foremen, Boilermakers, Welders and Helpers ; and as much advance notice
as possible is to be given by the Contractor.
No. 7. The Business Representative shall have access to all jobs and it shall
be his duty to appoint Foremen and Stewards on all jobs.
No. & The Steward's duties shall be to settle all grievances that may arise
on the job; if unable to do so he shall notify the Business Representative;
if the Business Representative is unable to settle the grievance, the Inter-
national Office shall be notified at once and give in detail a full report of said
grievance. The Steward shall have authority to examine cards of all mem-
bers employed as often as he deems necessary. Stewards shall see that the
working rules of the local are enforced and that all safety rules of the state
where work is being performed are fully complied with. Stewards shall
not be empowered to call any strike or work stoppage. The Steward and
the Foreman shall be the last men laid off.
Pursuing the "working conditions" further we find rule No. 17, which in the
considered opinion of the undersigned is quite pertinent to the issue involved
herein. It reads as follows:
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No. 17. Only members in good standing shall be employed on all jobs coming
under the jurisdiction of Lodge No. 13. All such men shall be hired through
the Business Representative of Lodge No. 13. [Emphasis supplied.]
It is significant that throughout the printed text of the "working conditions"
the language is couched and doubly emphasized by the transitive verb "shall."
Hence from the language of the "working conditions" the undersigned finds that
the provisions therein as regards the functions and responsibilities of the busi-
ness manager and the stewards under his supervision are mandatory and binding
upon the Respondents, particularly the Respondent Employer.
In view of the foregoing and in particular the plain language of the agree-
ment and its creature the "working conditions and scale of wages of Local No.
13," the undersigned is convinced and finds that at all times material herein the
Respondents have been parties to, have maintained, and have enforced, and
are parties to, are maintaining, and are enforcing, an arrangement , understand-
ing, or agreement made by and between them. Whereunder, for work to be
performed within the geographical jurisdiction of Respondent Union, applicants
for employment with Respondent Employer, as a condition of obtaining such
employment , must be approved for such employment by Respondent Union, and
that pursuant to said agreement the Respondent Union had caused and attempted
to cause and is causing and attempting to cause Respondent Employer to
require of applicants for employment with Respondent Employer as a condition
of obtaining such employment, approval for such employment by Respondent
Union.
In other words the undersigned finds that the agreement between the parties
is invalid on its face. This finding of course is primarily predicated upon the
plain and unambiguous language of the "working conditions." In the con-
sidered opinion of the undersigned his finding in this regard is buttressed by
the facts found hereinafter as regards the application of the Union's rules and/or
working conditions to the charging party herein Theodore Earl Fink. The
undersigned is not unmindful of the testimony of James A. Barr, secretary-
treasurer of the Respondent Employer, as regards certain deviations from the
plain language of the agreement by the Company in its hiring of nonmembers
of the Union. This phase of the case and its relationship to the issues in-
volved will be discussed in greater detail hereinafter. Suffice it to say, however,
that Barr's testimony in this regard has not convinced the undersigned that
the agreement means other than what its plain language says.
Further support of the General Counsel's position as regards the agreement
between the parties and the above findings of the undersigned is found in the
undenied and uncontradicted testimony of James J. Ryan, who at all times
material herein was one of the vice presidents of the Union, and had occupied
that position for approximately 7 years. In addition he was one of the original
draftsmen of the "working conditions" and his name as such appears on General
Counsel's Exhibit No. 3, which admittedly is a genuine copy of said working
conditions, which the undersigned has found above to be part and parcel of
the "Agreement" the same as if physically embodied therein.
According to Ryan, the "working conditions" as regards the employment of
workers on jobs over which the Union has jurisdiction are strictly adhered to
by the Union and employers with whom it has contractual relations. In the
course of his testimony as regards the role of the business manager of the
Union in the placement of workers on such jobs, he testified that no one goes
to work on a job unless he has been sent there by Business Manager Kennedy,
or has a permit card from him to work on the job. In the considered opinion
of the undersigned an excerpt from Ryan' s testimony as regards the actual
PHILADELPHIA IRON WORKS, INC . 611
practice of the Union in referring members to jobs from the "out-of-work" list
should be set forth herein. Accordingly it follows below :
Q. (By Mr. Summers) Tell me a bit about this out-of-work list. What
is it?
A. Well, when you get out of work, you go down and sign your name
on a slip in person, and then as a job comes up, as the men go out to work,
you go along in rotation, and you get a job.
Q. Are these jobs posted somewhere?
A. No.
Q. You say when your job comes up you go out and get it. What do
you mean?
A. You come up in rotation, as the fellows go out ahead of you. You
are put at the bottom of the list when you go in there.
Q. Do you know where you are on the list, normally?
A. You can ask your number.
Q. I see. When a job comes up, how do you know it?
A. They will give you a call, or maybe send you a telegram.
Q. I see. And if you are in the Union hall at the time the job comes up?
A. They will give you a job right there, and you go to work.
Q. But in all three of those instances, they will tell you to report, and
where?
A. Whatever shop you are going to report to, the steward or the
foreman.
Q. Is that list open to non-members of the Union?
A. No, I don't think so.
Q. You don't believe so?
A. No, I am pretty sure of it.
Q. Have you ever seen the name of a non-member on the list?
A. I have seen them on permits, last month. In fact, I think we have
them on permits there.
Q. Well, is it open to anyone who is not either a member, or a permit
man?
A. I didn't get that right.
Q. Is the list open to anyone who is not either a member of the Union
or a permit man?
A. Oh, no, no ; that is only for members.
Q. When a person goes to work upon being referred, as you just indicated,
who signs him up for work?
A. Well, I believe Kennedy sends a slip out signed by the girl. He gives
his consent , and the bookkeeper puts her name and sends it out. She
sends either a telegram or a telephone call, or a card.
Q. Who signs them up at the job?
A. At the job?
Q. Yes.
A. The steward.
Q. The steward?
A. Yes, that's right. He checks their dues and sees that they are in good
standing.
Q. Can non-members of the Union be hired?
A. Not to my knowledge. They must have a card at all times.
Ryan's interpretation of the role of the Union in enforcing its "working con-
ditions" on jobs he personally worked on is corroborated by the credible testi-
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony of Charles Fink, a foreman employed by the Respondent Employer, and
Theodore Earl Fink, the charging party herein.
In making the above finding the undersigned is not unmindful of the cases cited
by the Respondent Union in support of its position that the agreement between
the parties was valid and clearly within the purview of the Act. He has read the
cases cited and is familiar with their holdings, but he is convinced that none are
in point with the factual situation found here. Here the undersigned has found
that the agreement is illegal on its face. Such was not the case in the cases
referred to by counsel for the Respondent Union. Had the agreement with which
we are concerned with herein not embodied and made the "working conditions"
of the Union a part thereof, then the undersigned might well have found to the
contrary. Suffice it to say, however, that the vice of the agreement, as the
undersigned sees it, is the fact that the "working conditions" of Local No. 13
are part and parcel of it the same as if they had been written directly therein.
Moreover it is significant that nowhere in its brief does the Respondent Union
mention the fact that the "working conditions" of Local No. 13 are specifically
"spelled out" in section 2 of article 21 of said agreement. Clearly, here lies the
answer to the legality of the agreement between the parties.
It was in the light of the above that the events with which we are concerned
herein occurred.
The charging party, Theodore Earl Fink,' at all times material herein was a
member in good standing of the Union, and had been for the past 11 years. On
Saturday, September 8, 1951, he called John Faix, the vice president and superin-
tendent of the Respondent Employer at his home. At the time Faix was absent
and Fink left a message with his wife to call him at his home. The next day,
Sunday, September 9, 1951, Faix called Fink. In the course of their telephone
conversation Fink asked Faix for a job in the Philadelphia area , and at the
time told him that he was badly in need of work in order to support his family,
or as Faix put it he was "scratching the bottom of the barrel" insofar as his
finances were concerned. Faix told him that he would check up on the matter
and call him later. On the next day, Monday, September 10, 1951, Faix talked to
Ted Fink over the phone, and told him to report immediately to a job at "Stetson
Hat." In the course of that conversation Faix asked Fink what he was going to
do about "Kennedy," meaning the business agent of the Union. Fink told him
that he would call Kennedy and inform him that he had the job at "Stetson Hat."
Thereafter, Fink called the Union's office but was unable to get Kennedy on the
phone until about 2: 30 p. in. At this time Fink told Kennedy that he had the
job at "Stetson Hat" and intended to report for work at once. Kennedy told
him in words or substance that he could not take the job because he was not on
the top of the "out-of-work" list. In the considered opinion of the undersigned
Fink's version of the conversation is of the utmost importance not only because
it is one of the compelling factors in his ultimate determination of the issues
involved herein, but also because it stands uncontradicted and undenied in the
record. This is so because neither of the Respondents herein chose to call
Kennedy as a witness nor did either of them make any showing one way or an-
other by way of comment or otherwise through their counsel that he was un-
available as such. This, in face of the fact that Kennedy is referred to adversely
time and again throughout the official transcript of the record. Accordingly,
Fink's testimony in this regard is credited. Av excerpt from Ted Fink's testi-
mony in this regard follows below :
11 At times referred to herein as "Ted" Fink , in order to not confuse him with his brother
Charles Fink, who also appeared and testified / *ais proceeding.
PHILADELPHIA IRON WORKS, INC . 613
Q. Did you talk to Mr. Kennedy?
A. I called Mr. Kennedy's office around half past eleven, right after I
talked to Faix, and I called him continually until half past two. I think I
made six phone calls all together.
Q. You mean you were unable to reach him?
A. I reached his office, and a girl in the office told me Mr. Kennedy wasn't
in, continually.
Q. Did you eventually reach Mr. Kennedy?
A. Yes, around two thirty.
Q. What did you say, and what did he say?
A. I told him about the job I had with Philadelphia Iron Works to go to,
and he said "you are not going there," and I asked him who was going to
stop me, and he said "I will." He said "you are not on the top of the list,
and you are not eligible to go there."
Q. Anything further?
A. Yes, sir. And then I said "well, I am going to go to work, and if you
are big enough to knock me off, Mr., you come up and do it." And that was
the end of the conversation. Well, no ; there was a little more to that
conversation. I said to him. "If you are big enough to knock me off you
come up and do it," and his return was "Well, I am big enough," and that
was the end of the conversation.
Q. He said you weren't eligible ; is that right?
A. That's right.
Trial Examiner SHAW : He told you two things ; that you were not at the
top of the list, and secondly, that you were not eligible ; is that right?
The Witness : That is the reason why I wasn't eligible, because I was
not on the top of the list.
Shortly after his conversation with Kennedy, Fink called his brother Charles
Fink,' the foreman on the job at "Stetson Hat." Ted told his brother that it
was then late in the afternoon and that by the time he got out to the job site it
would be too late to go to work and asked him if the job would be "open" the
next morning. His brother told him that it would be. In the course of the
conversation Ted Fink told his brother about his conversation with Kennedy
and that Kennedy had told him not to report for work, but that he intended to
report regardless of Kennedy's instructions. Later events, however, precluded
him from doing so.
That evening Faix called Ted Fink and told him not to report for work at the
"Stetson Hat" job the next morning, September 11, 1951. According to Ted
Fink's testimony, Faix told him in the telephone conversation that Kennedy had
called Barr, the Respondent Employer's secretary-treasurer, and told him that
he [Ted Fink] was not to report to work the next morning at the "Stetson Hat"
job. As a result of Faix's call, Fink did not report for work the next morning,
September 11, 1951.
Charles Fink, a brother of Ted Fink, testified that he was employed as a fore-
man by the Respondent Employer, and was in charge of the "Stetson Hat" job
referred to above, at all times material herein. He described his duties as
follows :
Q. As foreman , what are your duties , generally?
A. Well, to do work.
Q. Speak up, please.
4 Referred to herein as either "Carl" or "Red" Fink. [In the record some of the witnesses
call him "Red" Fink, and others, such as Faix, "Carl" Fink.]
257965-b4-vol. 103-40
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Just to do work, is the only thing I know. Perform jobs, erect jobs,
at various places.
Q. You mean you work at one place until that job is finished, and then
you are assigned to another?
A. That's right.
Q. You work out in the field, do you?
A. That's right.
Q. Do you have men under you?
A. That's right.
Q. To give them orders?
A. That's right.
Q. Can you hire or discharge?
A. I can discharge, and I can hire, providing I tell Mr. Faix I need
men for the job, and he will tell me, or either he will tell me or he will go
ahead and hire them.
Q. Isn't Mr. Faix on the job with you?
A. No, not always.
Q. Is he most of the time?
A. He spots around once or twice a day.
Q. Once or twice a day?
A. Yes.
Q. Where does he normally work?
A. Well, he is all over. He doesn't work at any place.
Q. Where does he work out of?
A. He works out of the Philadelphia Iron.
Q. Well, are you top man on the job, most of the time?
A. That's right.
Q. Are you called an erector or foreman?
A. I could be called either, I guess, but I classify myself as a foreman.
He further testified that he was a member in good standing in the Union,
and was included in the bargining unit represented by the Union in its agree-
ment with the Respondent Employer.? According to Fink, the following procedure
is used in procuring workmen for the various jobs which he has been assigned to
oversee:
Q. Now, I would like to find out about the general hiring practices of
the employer on the various jobs in the field. Who decides what the needs
are, how many men are needed?
A. I mostly do.
Q. How do you go about filling that need?
A. When I go on a job, maybe I will take three or four men with me, onto
the job , and see what it is all about , and then if I need more men , Mr. Faix
will come to the job, and I will tell him, and he will either hire them or tell
me to go ahead and hire them.
Q. Well, let's first speak about those he tells you to go ahead and hire.
Tell us the processes.
A. Well, if I am supposed to hire them , I call the hall and tell them what
men I need , whether it is a welder , whether it is a boilermaker , or a helper,
or what it is, and then they send the men to the jobs.
7 Charles Fink is carried on the payroll as a "Leadman" and draws wages as such under
the terms of the agreement between the Company and the Union . His rate of pay was
$3.50 per hour . At the time of the hearing herein he had been employed by the Respondent
Employer for 15 years.
PHILADELPHIA IRON WORKS, INC . 615
Q. You do that yourself, or do you do it through anyone?
A. I beg your pardon?
Q. Do you call them yourself, or do you do it through a steward or some-
thing?
A. Well, we don't always have a steward on our jobs.
Q. When you do have a steward?
A. Then I go to the steward.
Q. You go to the steward?
A. That's right.
Q. If you don't have a steward on the job, you will call the hall?
A. I will call the hall.
Q. Are any but members of Local 13 hired?
A. Are any members of 13 hired?
Q. No, are any except members of Local 13 hired?
Mr. KLEER : Now, just a minute. I object to the form of that question.
If he is limiting the question to the men he hired, that is one thing ; but
if he is talking about an interpretation of the contract, that is something
else.
I object to the broad question.
Trial Examiner SHAW: Rephrase the question.
Mr. SUMMERS : I will rephrase the question, and go back to another
one.
Q. (By Mr. Summers) These persons who are hired by Mr. Faix, rather
than yourself, do you know what process he uses in hiring those people?
Mr. KLEES : If he knows.
Trial Examiner SHAW : If he knows.
Q. (By Mr. Summers) Yes, if you know.
A. He calls the hall.
Q. He calls the hall?
A. And they, in turn, send men out, if they have them.
Q. Now, to your knowledge, and this would include men hired both by you,
and Mr. Faix-to your knowledge, have any but members of Local 13 been
hired?
A. No, sir.
Q. And how long back does that go? Well, would you say for the last
three years that that is true?
A. Oh, yes.
Q. At least three years?
A. Oh, yes.
Carl Fink's version of the circumstances surrounding the hiring of his brother
Ted Fink on the "Stetson Hat" job, was as follows. Faix came out on the job on
Monday morning, September 10, 1951, and he told him that he could use another
man on the job. In the course of the conversation Faix suggested that he hire
Ted Fink' This was agreeable with him and he immediately left the job site and
went to a nearby telephone and called his brother. At the time Ted was not home
so he left a message with his son, and instructed him to tell his father that he had
a job for him and to come on out and go to work. Later in the day, sometime in
the late afternoon, Ted Fink called him and said that since it was so late in the
day he would not report, but would the next morning if the job was still avail-
able.' He assured Ted that the job was still open and that it would be all right to
9 According to Faix there was "ill-feeling " between the Fink brothers and he carefully
broached the question of putting Ted Fink on the job before sending him out to work under
the supervision of "Carl," in order to dissipate any friction that might possibly develop.
9 See supra.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
report for work the next morning. Shortly thereafter, he received a call from
Faix who told him that he could not put Ted Fink to work because someone from
the Union's office had called Barr and told him that Ted Fink was not to work on
the "Stetson Hat" job. Fink in his testimony was vague as to whether Faix said
that Barr had talked to Kennedy or not. In any event the undersigned deems it.
unnecessary to resolve his testimony in this regard for reasons which will be
apparent hereinafter. Suffice it to say that in the considered opinion of the un-
dersigned the material factor is the fact that Faix told him not to hire Ted
Fink, because the Union had called the office and instructed the Respondent Em-
ployer to refrain from such action. The answer of course is the record itself
and the undersigned's appraisal of the testimony of Barr and Faix in this regard
which follows immediately below.
Both Barr and Faix in substance denied that the Union or any representative
thereof called them or any employee in the Respondent Employer' s office relative
to the placement of Ted Fink on the "Stetson Hat" job.
Faix admitted that he told Carl Fink that it would be all right to hire Ted
Fink on the "Stetson Hat" job. However, his version of the incident was that
when he went out to the job site on Monday, September 10, 1951, he found that
the crew on the job was experiencing considerable difficulty in getting the mate-
rial on the desired "spot." He discussed this matter with Carl Fink, who sug-
gested that they hire another man to assist in this particular phase of the work.
At this point Faix suggested that they hire Ted Fink. Carl Fink agreed to do so,
and took steps to get Ted out to the job in the manner described above. Shortly
thereafter Faix left the job site. He returned later in the afternoon, about 3 or
3: 30 p. in., and at that time he found that the crew on the job was making better
progress than he had anticipated and it occurred to him that perhaps they would
not need another man on the "Stetson Hat" job. His thought in this regard was
confirmed when he later talked to a truckdriver who had just returned from the
job site, who informed him that the crew had succeeded in getting the material
inside the plant on the "spot" where the main job was to be done. Since a part
of his job was to keep the cost of labor down he decided they did not need Ted
Fink or any other worker on the job. With this in mind he called Ted Fink at
home and told some member of his family that the Company did not need Ted
Fink on the "Stetson Hat" job, and for this reason he was not to report there the
next morning for work. Sometime later that evening Ted Fink called him and
said that he had talked to Kennedy and that the latter had told him not to report
on the job, but that be was going to do so, and "defied" anyone to take him off
the job 30
Shortly after Faix's conversation with Ted Fink, he called Charles Fink and
instructed him not to put Ted Fink to work the next morning on the "Stetson
Hat" job, and at the same time related to him [Charles Fink] the gist of Ted
Fink's conversation about the Union.
According to the credible testimony of Charles Fink, neither Ted Fink nor
anybody else was hired to complete the job at "Stetson Hat." He went ahead
with the crew he had and finished the job. He testified, however, that by so
doing, the completion of the job was delayed somewhat, and he was forced to
push the men "a little harder" than he ordinarily would have done. In all it
required about 7 or 8 days to complete the job.
As indicated above both Barr and Faix denied that either Kennedy or anybody
else from the Union instructed them to refuse employment to Ted Fink. They
10 In this conversation Ted Fink told Faix about his conversation with Kennedy, which
has been described above.
PHILADELPHIA IRON WORKS , INC. 617
admitted however that somebody in the office talked to someone from the Union
on or about the dates that the "Fink " incident occurred , September 11 and 12,
1951 . An examination of their testimony both individually and collectively in
this regard reveals a maze of inconsistencies , contradictions, and outright im-
probabilities . The undersigned has carefully reviewed the record and quite
frankly he is unable to make "heads or tails" of their testimony as regards the
refusal of the Respondent Employer to permit Ted Fink to work on the "Stetson
Hat" job . Even a cursory examination of their testimony in this regard by one
inexperienced in such matters would reveal this . Particularly that of Faix, nob
only does the record reveal a list of unresponsive , unintelligent , and quite frankly,
evasive answers to the questions posed to him by the General Counsel, but his
demeanor which the undersigned had ample opportunity to observe , belie his
denials as regards the role played by Kennedy and/or the Union in the decision
of the Respondent Employer to deny Ted Fink employment on the " Stetson Hat"
job. Under such circumstances , and upon the record as a whole , particularly the
undenied and uncontradicted testimony of Charles Fink and James J. Ryan [of
whom more anon] , the undersigned cannot give any credence to their denials as
regards the Ted Fink incident.
Finally, the undersigned is convinced that the uncontradicted and undenied
testimony of James J . Ryan, as regards a conversation he had with John J.
Kennedy shortly after the Ted Fink incident occurred , further belies the denials
of Barr and Fain as regards the role Business Agent Kennedy played in causing
the Respondent Employer to deny employment to Ted Fink on the "Stetson Hat"
job. According to Ryan, who at all times material herein was a vice president
of Local No . 13, he met with Kennedy socially a few days after Ted Fink was
denied employment by the Respondent Employer, and while they were sipping
a beer or two , Kennedy told him without any preliminary conversation as regards
Ted Fink , or as Ryan put it "out of a clear sky," "... Fink tried to get wise
this week. . . ." Ryan asked him what he meant , and Kennedy replied , "... Oh,
he went up to the Philadelphia Iron and tried to get his own job , but I knocked
him back on the list ." [Emphasis supplied.]
Both Respondents , particularly the Respondent Union , objected to the admissi-
bility in evidence of the testimony of Foreman Charles Fink as regards his con-
versation with Vice-President Faix and the instructions he received from Faix
not to employ Ted Fink on the "Stetson Hat" job, on the grounds that it was
"thrice -removed" heresay. The undersigned overruled their objections and per-
mitted the testimony to stand on the record . The Respondent Union commented
at some length on this ruling at the hearing herein and also in its brief. The
undersigned has considered its contention in this regard and finds it to be com-
pletely without merit . To begin with Charles Fink 's testimony that he had a
conversation with Faix is not heresay. It is a fact. Moreover what Faix said
to Fink is not heresay in and of itself . It is merely a part of the conversation.
Faix was in the courtroom at the time Fink 's testimony in this regard was
elicited . He was available as a witness for the Respondent Union to rebut any
or all of Charles Fink 's testimony. In fact he was so used and did in fact and
effect deny the crucial points in Fink 's testimony . This is not "hearsay." The
undersigned agrees with counsel for the Respondent Union that if Fink's
testimony stood alone , then that portion of the related conversation that someone
from the Union told Barr not to hire Ted Fink , and that Barr then told Faix,
then that portion of Fink 's testimony would be objectionable as heresay and no
finding could properly be made on such testimony . As the undersigned sees it
Carl Fink 's testimony that Fain told him not to put Ted Fink to work on the
"Stetson Hat" job because someone from the Union called the office in this regard
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is not heresay. Particularly since Faix was the Respondent Employer's vice
president and superintendent of construction and had overall supervision of this
job, as well as all others undertaken by the Company, and Charles Fink was ad-
mittedly its long-time employee and foreman in charge of the job at issue, then
any instructions given Fink by Faix in the conversation is a far cry from objec-
tional heresay. Assuming that it was heresay, the testimony was nevertheless
admissible because other witnesses called by the General Counsel confirm Charles
Fink's testimony in its ultimate effect on the issues involved herein. That is the
events that flowed from Faix's instructions to Fink as regards placing Ted Fink
on the "Stetson Hat" job are amply demonstrated in the record by the uncontra-
dicted and credited testimony of James J. Ryan, and portions of the testimony of
Charles Fink and Ted Fink. Moreover, Ryan's testimony, since he was at the
time a vice president of Local No. 13, was in effect an admission against interest
on the part of the Respondent Union. Again, assuming that the testimony of
Charles Fink was hearsay, it clearly [in view of the above] was "probative
heresay." It is well settled that "the requirement that the administrative
finding accord with the substantial evidence does not forbid administrative utiliza-
tion of probative heresay in making such findings.""
Now as to the contention of the Respondents that Barr's testimony as re-
gards the hiring of approximately five employees during the year 1951 without
having them cleared through the Union, rebuts any and all of the contentions of
the General Counsel that they operated under an illegal agreement, understand-
ing, or arrangement as regards the hiring and employment of persons coming
under the jurisdiction of the Union. In the considered opinion of the under-
signed Barr's testimony in this regard, even if it could be assessed as being 100
percent true in all its ramifications, nevertheless is without any probative value
as regards this particular issue for the simple reason that the agreement speaks
for itself. Consequently, any parole evidence to the effect that the parties meant
otherwise than what they said or conducted themselves in a manner opposite
to the plain and unambiguous language of the agreement is clearly violative of
the parole evidence rule, and entitled to little or no weight and certainly is of
no probative value in the determination of the issues involved herein.
Concluding Findings
From all of the above the undersigned finds that Ted Fink, the charging party
herein, was hired by the Respondent Employer on the afternoon of September 10,
1951, and shortly thereafter on the same date was discriminately refused em-
ployment by the Respondent Employer at the request and behest of the Re-
spondent Union, because he had chosen to refrain from using its "out-of-work"
list as a prerequisite to securing employment with the Respondent Employer.
The undersigned further finds that John J. Kennedy, the Union's business agent,
having been informed by Ted Fink that he intended to go to work for the Re-
spondent Employer without first being cleared by the Union for said job, there-
after instructed the Respondent Employer to refuse employment to said Ted
Fink ; that shortly thereafter John Faix, the Respondent Employer's vice presi-
dent and superintendent in charge of construction called Charles Fink, Respond-
ent Employer's foreman on the "Stetson Hat" job, and instructed him to deny
employment to Ted Fink because of the complaint lodged with the Respondent
Employer as regards Ted Fink's employment, by the Respondent Union's business
"Quoted portion from Willapoint Oysters, Inc. v. Ewing, 174 F. 2d 676, 690, certiorari
denied 338 U. S. 860. See also N. L. R. B. v. Ford Motor Co., 114 F. 2d 905, 911 (C. A. 6),
certiorari denied 312 U. S. 689 ; and Cudahy Packing Company v. N. L. R. B., 102 F. 2d
745, 750, (C. A. 8), certiorari denied 808 U. S. 565.
PHILADELPHIA IRON WORKS, INC. 619
agent , John J. Kennedy; that shortly thereafter on the same date, September 10,
1951, John Faix so informed Ted Fink ; that as a result of all of this Ted Fink
did not report to the "Stetson Hat" job for the reasons set forth above. The
undersigned further finds that the refusal of the Respondent Employer to employ
Ted Fink was because of its written agreement with the Union, which provided
inter alia that the "working conditions" of Local No. 13 shall prevail in all the
employment practices of the Respondent Employer."
The undersigned further finds that the Respondent Employer did offer to
Ted Fink employment on or about October 8, 1951, at a job site in the State
of New Jersey, which was outside the geographical jurisdiction of the Union
herein and that Ted Fink accepted the offer of employment and thereafter worked
for the Respondent Employer until the job was completed.
The undersigned further finds that the Respondent Union ceased its discrim-
inatory practices as to Ted Fink sometime in March 1952, when they permitted
him to secure employment at a job in the city of Philadelphia, Pennsylvania,
with another employer, and that at least since on or about that date has not
engaged in discriminatory tactics as regards his hire or tenure with the Re-
spondent Employer herein or any other employer with whom it has contractual
relations, insofar as the record herein discloses."
As the undersigned sees it the vice of the conduct of the Respondents herein
lies in its inclusion of the provisions of the "Working Conditions and Scale of
Wages of Local Lodge No. 13" in their agreement, which has been found to have
been in full force and effect at all times material herein. From this stems the
illegal conduct of the Respondents as regards Ted Fink. The undersigned under-
stands why the parties entered into such an agreement. He is not unmindful
of the fact that the working arrangement between the parties was amicable,
practical, and in many respects a salutary solution to their mutual problems.
But these commendable arrangements as well as any predilections the under-
signed might possibly have one way or another are beside the point, for the
simple reason that the law says such arrangements are illegal. That being
so the undersigned further finds herein below that the General Counsel has
maintained the burden of proof necessary to make the below findings as re-
gards both of the Respondents herein.
The undersigned finds that the inclusion of the "working conditions" of
Local No. 13 in the agreement between the parties provided for not only the
preferential hiring of the union members, but the mandatory use of the Union's
"out-of-work" list when employees were to be hired by the Respondent Employer
on jobs coming under the geographical jurisdiction of Local No. 13; that such
provisions were therefore illegal in view of the provisions of Section 8 (a) (3)
and 8 (b) (2) of the Act; 14 and that its execution by the parties constituted
unfair labor practices on the part of the Respondent Employer herein within
the meaning of Section 8 (a) (1), (2), and (3) of the Act and on the part of
the Respondent Union within the meaning of Section 8 (b) (1) (A) and (2)'a
in spite of the "savings' clause" inserted in said agreement.16
1' See supra as regards the "Agreement."
18 Since such matters as these are properly subjects of "Compliance" the undersigned sees
no necessity in elaborating on the factual data in this regard in the record in this Interme-
diate Report.
14 Port Chester Electrical Construction Corporation , 97 NLRB 354. Essex County Vicinity
District Council, Carpenters , et al., 95 NLRB 969, 972, 993-994 ; Jultus Resnick, Inc., 86
NLRB 38, 39, 49, 54 ; and cases cited therein.
15 Red Star Express Lines of Auburn, Inc., 93 NLRB 127-128 ; Monolith Portland Cement
Company, 94 NLRB 1358 , 1362-63 ; Childs Company , 93 NLRB 283.
1s The Port Cheater and Essex County cases, supra,; Hazel-Atlas Glass Company, 85 NLRB
1305 ; 0. F. Shearer 4 Sons, 93 NLRB 1228.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By the conduct described above the undersigned further finds that Theodore
Earl Fink was refused employment on September 10, 1951, by the Respondent
Employer at the request and demand of the Respondent Union for his refusal
and failure to use the Union's "out-of-work" list as a vehicle for such em-
ployment. Such conduct is clearly violative of the rights guaranteed employees
in Section 7 of the Act, which provides inter alia that employees may engage
in union activities or refrain from doing so. Theodore Earl Fink chose to exer-
cise his statutory right to refrain from using the facilities of the Union's "out-
of-work" list in his procurement of employment. His decision to do so was
well within his statutory rights and neither the Respondent Employer nor the
Respondent Union has a legal right to penalize or discriminate against him
because he chose to exercise the rights guaranteed him and all employees by
Section 7 of the Act.
Accordingly, the undersigned finds that by the conduct described above the
Respondent Employer violated Section 8 (a) (1), (2), and (3) of the Act, and
the Respondent Union, Section 8 (b) (1) (A) and 8 (b) (2) of the Act17
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the activities of the Respondent Company described in section
I, above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents engaged in unfair labor practices, the
undersigned will recommend that they cease and desist therefrom and take
certain affirmative action in order to effectuate the policies of the Act.
As indicated immediately above the problem of devising a remedy for the
discriminatory refusals to employ Theodore Earl Fink presents considerable
difficulty in view of the nature of the Respondent Employer's business, partic-
ularly its field operations in which Fink sought employment. As pointed out
above the Respondent Employer erects smokestacks, installs boilers, and en-
gages in a host of allied operations over a wide area and each field job is of
uncertain duration. In general, it appears that the Respondent Company hires
a complement of employees [or a crew] necessary for each project and termi-
nates their employment upon completion of the project. The Respondent Em-
ployer does not employ a full crew of employees on a permanent basis for its
field operations and shift them from job site to job site. It does, however, have
a few employees who are members of and represented by the Respondent Union,
who are classed as permanent employees such as Charles Fink, who is called
a "foreman" but on the "Stetson Hat" job carried on the payroll as a "lead-
man." Such employees as Charles Fink are shifted from job to job. The
charging party herein, Theodore Earl Fink, cannot be so classified in view of
the nature of the job he was discriminately refused employment on by the
Respondent Employer.
Since the "Stetson Hat" job was completed long before the hearing herein
was held, and the Respondent Employer insofar as the record herein is con-
17 As regards the applicability of Section 8 (b) (2) to the facts found herein , see the
reasoning of the Board and the Trial Examiner in The Radio Of)lcer8' Union of the Com-
mercial Telegraphers Union, AFL, (William Christian Fowler ), 93 NLRB 1523, Case
No. 2-CB-91, April 18, 1951.
PHILADELPHIA IRON WORKS, INC. 621
cerned had paid off the "crew" used on that job, then such circumstances miti-
gate a forthright recommendation for the Respondent Employer to offer Fink
employment forthwith. This is particularly true since the Respondent Em-
ployer offered to Fink on October 8, 1951, employment elsewhere which he
accepted. Even though this was outside the geographical jurisdiction of the
Union herein it is evidence to be considered in assaying the Respondent Em-
ployer's position herein.
Therefore it will be recommended that the Respondent Employer, Philadelphia
Iron Works , Inc., offer Theodore Earl Fink immediate employment on one of its
outside-the-plant jobs or as soon thereafter as jobs within the geographical
jurisdiction of the Union are available, as a craftsman as defined in the written
agreement between the Respondent Employer and the Respondent Union or at
any job at which he is qualified to perform, and that the Respondent Union
notify the Respondent Employer in writing that it will not object to, but on the
contrary now requests, Theodore Earl Fink's immediate hire in accordance with
the recommended offer by the Respondent Employer set forth herein immedi-
ately above 18
Since it has been found that the Respondent Employer and the Respondent
Union are both responsible for the discrimination suffered by Theodore Earl
Fink it will be recommended that they jointly and severally make Theodore
Earl Fink whole for any loss of earnings he may have suffered by reason of the
discrimination against him, by payment to him of a sum of money equal to that
which he would have earned in the employ of the Respondent Employer from
September 12, 1951, to the date the job at "Stetson Hat" was completed, as
shown by the job records of the Respondent Employer, which the undersigned
recommends be made available to the designated agents and/or representatives
of the Board."
Upon the basis of the foregoing findings of fact and upon the record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Local No. 13, International Brotherhood of Boilermakers , Iron Shipbuilders
and Helpers of America, AFL, is a labor organization within the meaning of
Section 2 (5) of the Act.
2. Philadelphia Iron Works, Inc., of Philadelphia, Pennsylvania , is an em-
ployer within the meaning of Section 2 (2) of the Act.
3. By executing and including in their agreement of August 1, 1950, and which
... shall remain in full force and effect until July 31, 1951, and from year to
year thereafter," and which by its terms was in full force and effect at all times
material herein , provisions which were mandatory on the part of the Respondent
Employer, to abide by and conduct its affairs as regards the hire and tenure
of employment of members of the Respondent Union, as set forth in the "Work-
ing Conditions and Scale of Wages of Local Lodge No. 13" which rules pro-
vided, inter alia, "... No. 17. Only members in good standing shall be employed
on all jobs coming under the jurisdiction of Lodge No. 13. All such men shall be
hired through the Business Representative of Lodge No. 13." As a condition of
employment by Respondent Employer, said Respondent Employer committed un-
fair labor practices within the meaning of Section 8 (a) (1), (2), and (3) of
the Act, and the Respondent Union committed unfair labor practices within
the meaning of Section 8 (b) (1) (A) and (2) of the Act.
3" See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
a Crossett Lumber Company, 8 NLRB 440; F. W. Woolworth Company, 90 NLRB 289.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By discriminating in regard to the hire and tenure of employment of
Theodore Earl Fink , thereby encouraging membership in a labor organization, the
Respondent Employer has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
5. By causing the Respondent Employer to discriminate in regard to the hire
and tenure of employment of Theodore Earl Fink in violation of Section 8 (a) (3)
of the Act, the Respondent Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 ( b) (2) of the Act.
6. By interfering with, restraining , and coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act , the Respondent Employer has
engaged in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
7. By restraining and coercing employees of the Respondent Employer in the
exercise of their right to refrain from any and all of the concerted activities
guaranteed by Section 7 of the Act , the Respondent Union has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A)
of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
SYMNS GROCER Co., AND IDAHO WHOLESALE GROCERY Co. and TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS UNION, LOCAL
No. 983, AFL. Case No. 19-CA-481. March 16,1953
Decision and Order
On September 15, 1952, Trial Examiner David F. Doyle issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent Symns Grocer Co., hereinafter called Symns, had engaged
in and was engaging in certain unfair labor practices and recommend-
ing that it cease and desist therefrom and take certain affirmative ac-
tion, as set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner also found that the Respondent Idaho
Wholesale Grocery Co., as successor of Respondent Symns, was re-
sponsible, jointly and severally, with Respondent Symns, for remedy-
ing the latter's unfair labor practices. Thereafter, the Respondents
filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Styles and Peterson].
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Intermediate Re-
port, the briefs and exceptions, and the entire record in the case and
103 NLRB No. 63.