The Babcock & Wilcox Co.

National Labor Relations Board - Board Decisions

Dec 27, 1954

110 N.L.R.B. 2116 (N.L.R.B. 1954)

2116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE BABCOCK & WILCOX COMPANY and STEPHEN MRAZEK, WALTER
SMITH, MICHAEL DUNCOVICH AND JOSEPH MARIN
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS
AND HELPERS OF AMERICA, AFL, DISTRICT No. 2 and STEPHEN
MRAZEK, WALTER SMITH, MICHAEL DUNCOVICH AND JOSEPH MARIN_
Cases Nos. 2-CA-2921 and 2-OB-9418. December 27, 1954
Decision and Order
On May 13, 1954, Trial Examiner Ralph Winkler issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent Employer and the Respondent Union had engaged in and
were engaging in certain unfair labor practices, and recommending
that they cease and desist therefrom and take certain affirmative ac-
tion, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, each Respondent filed exceptions to the Interme-
diate Report and supporting briefs, and the charging parties filed a
brief in support of the Intermediate Report.'
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed .2 The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations, with the following additions.
1. The Respondents assert that the Trial Examiner erroneously
ruled that the individual charging parties were not "fronting" for
Local 23, a noncomplying union. We agree with the Trial Examiner
that the charges were filed by the four individuals on their own behalf,
and that any benefits that their union might derive from a resolution
of the charges is at most incidental to the rights of the individuals in-
volved.3 Like the Trial Examiner, we also find without substance the
related contention of the Respondents that the four individuals did
not make bona fide applications for employment. One of them, Mra-
zek, had been laid off and was therefore unemployed when he first ap-
plied for a job at the Babcock & Wilcox project. Marin, another appli-
cant, was also unemployed when he applied. Smith and Duncovich
'The Respondent Employer ' s request for oral argument is denied as the record, the
exceptions , and the briefs adequately present the issues and the positions of the parties.
3 The Respondent Employer has excepted to the Trial Examiner ' s ruling permitting the"
General Counsel to amend the complaint at the hearing to allege a discriminatory refusal
to hire Mrazek on December 4, 1952, asserting that the amendment was mole than 6
months after December 4 and therefore barred by Section 10 (b). As the original charge
filed January 19, 1953, alleged a discrnninatoiy refusal to hire Mrazek in January 1953,
we find that the amendment was proper . See Sawyer Downtown Motors , Inc, 103 NLRB
1735 , Dimon Coil Co , Inc v N. L R. B , 210 F. 2d 484 (C. A. 2).
-N L R B v L. Bonney & Sons Furmituie 31fg. Co, 206 F 2d 730 (C A 9), cert..
denied , 346 U . S. 937 , N L R B . v. Coal Creek Coal Co., 204 F. 2d 579 ( C. A. 10).
110 NLRB No. 264.
THE BABCOCK & WILCOX COMPANY 2117
were working at an hourly pay rate of $2.10, as against $3.30 available
at Babcock & Wilcox's project. There is nothing in the record that
could reasonably indicate that any of the 4 would not have accepted
proffered employment. The evidence suggests that at least 3 of the
4 may have suspected they would not be employed, but that fact, if
proved, would not affect the validity of the applications.
2. The Respondents assert that the complaint should be dismissed
even assuming that the Trial Examiner's conclusion that the four
applications for employment were legitimate is correct, because the
purpose of the charges was to further the cause of Lodge 23 in its
jurisdictional conflict with the Respondent Union. The Respondents'
reliance on Vaughn Bowen, 93 NLRB 1147, is misplaced. Most cases
of this type involve conflicts of jurisdiction between two labor organi-
zations, sometimes between separate internationals, sometimes be-
tween locals or districts of a single international. Only when, as in
Vaughn Bowen itself, there is a token hiring and firing, or when an
applicant for employment would not take the job he purportedly seeks
were it offered, is there an abuse of the Board's machinery. Accord-
ingly, we find that this contention lacks merit.
3. As to the alleged substantive violations, for the reasons set forth
in his Intermediate Report, we agree with the conclusions of the Trial
Examiner, except that we do not rely upon the noncompliance of
District 2 and some of its constituent lodges in finding unlawful any
of the provisions of the contract between the Respondent Employer
and the Respondent Union.'
THE REMEDY
In conformity with the Board's recent decision in Local Union
595, International Association of Bridge, etc. Workers, AFL, 109
NLRB 73, we shall require the Respondent Union to notify each dis-
criminatee, as well as the Respondent Employer, that the Respondent
Union has no objecton to his immediate employment.
The Respondent Employer has moved to reopen the record to in-
clude an affidavit to the effect that the project at Astoria where
Mrazek, Duncovich, Smith, and Marin were refused employment has
been completed. This material is matter to be dealt with in connec-
tion with compliance. The Board does not require the Respondent
Employer to do a useless thing, and that portion of our order that
requires the Respondent Employei to offer employment to the charg-
ing parties is necessarily conditional upon the Employer continuing
to do business and to employ boilermaker employees in the jurisdic-
* This issue was not raised in this posture at the heaung In any event, we agree with
the Trial Examiner that the contract's provisions themselves violate the statute.
2118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ticnal area of the Respondent Union.' The Employer's motion is
accordingly denied. As the contract between the Employer and the
Union, portions of which are unlawful is not limited in scope to the
Astoria project, but applies throughout District 2's jurisdiction, we
conclude that, to be coextensive with the violations of the Act found,
our order should embrace the operations of each Respondent through-
out this area. We shall, therefore, modify the Trial Examiner's
recommended order and limit its scope to the jurisdictional area of
District 2 as set forth in the contract between the Respondents.,
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
I. The Respondent Babcock & Wilcox Company, New York, New
York, its officers, agents, successors, and assigns, shall:
(a) Cease and desist from :
(1) Performing, maintaining, or otherwise giving effect to, in con-
nection with any of its construction projects or operations within
the territorial jurisdiction of the Respondent Union, any employ-
ment arrangement or agreement or practice with District No. 2, or
with any other subdivision or subordinate lodge of International
Brotherhood of Boilermakers, Iron Ship Builders and Helpers of
America, AFL, or with the International Brotherhood, requiring
membership in or referral or clearance by any labor organization
except in a manner permitted by Section 8 (a) (3) of the Act.
(2) In any like or related manner encouraging membership in
District No. 2 or in any other subdivision or lodge of the aforesaid
International Brotherhood, or in the International Brotherhood, or
in any other labor organization, or discouraging membership in Boil-
ermaker Lodge 23 or in any other labor organization, or otherwise
interfering with, restraining, or coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, except in a manner per-
mitted by Section 8 (a) (3) of the Act.
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(1) Offer employment to the four charging parties in the manner
described herein in the section entitled "The Remedy."
(2) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social-security payment records, timecards, personnel records and re-
8 See Joseph E Cote, d/b/a J E. Cote, et al, 101 NLRB 1486, 1488. In the event that
the project at Astoria has actually been completed , the Respondent Employer will be re-
quired to offer employment to the charging parties at any of its projects within this juris-
dictional area of the Respondent Union where it employs boilermakers
THE BABCOCK & WILCOX COMPANY 2119 ,
ports, and all other records necessary to analyze the amount of back
pay due in accordance with this Order.
(3) Post at all of its construction projects or operations within the
territorial jurisdiction of the Respondent Union copies of the notice
attached hereto marked "Appendix A." 6 Copies of said notice, to be
furnished by the Regional Director for the Second Region, shall, after
being duly signed by an official representative of the Respondent Em-
ployer, be posted by it immediately after receipt thereof, and be main-
tained by it for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to its employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent
Employer to insure that such notices are not altered, defaced, or cov-
ered by any other material.
(4) Notify the Regional Director for the Second Region, in writing,,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
II. The Respondent District No. 2, International Brotherhood of
Boilermakers, Iron Ship Builders and Helpers of America, AFL,
New York, New York, and its officers, representatives, and agents,
shall :
(a) Cease and desist from :
(1) Performing, maintaining, or otherwise giving effect to any em-
ployment arrangement or agreement or practice with The Babcock &
Wilcox Company, or with any other employer within the meaning of
the Act, requiring membership in or referral or clearance by any labor
organization, except in a manner permitted by Section 8 (a) (3) of
the Act.
(2) Causing or attempting to cause The Babcock & Wilcox Com-
pany, or any other employer, to discriminate against employees within
the meaning of the Act.
(3) In any other manner restraining or coercing employees in the
exercise of the rights guaranteed in Section 7 of the Act, except in a
manner permitted by Section 8 (a) (3) of the Act.
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(1) Notify the four charging parties and The Babcock & Wilcox
Company, in writing, that it has no objection to their employment, or
to the employment of any other boilermaker employees who are not
members of District 2 or of any other labor organization, or who are
members of Lodge 23 or of any other organization.
(2) Post in conspicuous places in its business offices, and in all places
where notices to members are customarily posted, copies of the notice
6 In the event 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."
2120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attached hereto marked "Appendix B.'" Copies of said notice, to be
furnished by the Regional Director for the Second Region, shall, after
being duly signed by an authorized representative, be posted by it im-
mediately after receipt thereof, and be maintained by it for sixty (60)
consecutive days thereafter. Reasonable steps shall be taken to in-
sure that said notices are not altered, defaced, or covered by any other
material.
(3) Mail signed copies of the notice attached hereto as "Appendix
B" to the Regional Director for the Second Region, for posting, by
The Babcock & Wilcox Company at all of its construction projects or
operations within the territorial jurisdiction of the Respondent Union.
Copies of said notice, to be furnished by the Regional Director for the
Second Region, shall, after being duly signed by an authorized repre-
sentative of the Respondent Union, be forthwith returned to said Re-
gional Director for such posting.
III. The Respondent Employer and the Respondent Union, their
officers, agents, representatives, successors, and assigns, in addition to
the- respective action above ordered, shall jointly and-severally, in, the
manner set forth in the section of the Intermediate Report entitled
"The Remedy," make whole Stephen Mrazek, Walter Smith, Michael
Duncovich, and Joseph Marin.
MEMBER ROD(:ERS took no part in the consideration of the above Deci-
sion and Order.
4 See footnote 6, vupia
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 our employees that :
WE WILL NOT require employees or applicants for employment
to be members of, or to obtain clearance or job referrals from,
District No. 2, International Brotherhood of Boilermakers, Iron
Ship Builders and Helpers of America, AFL, or from any other
labor organization, as a condition of employment, except in con-
formity with Section 8 (a) (3) of the Act.
WE WILL NOT perform, maintain, or otherwise give effect to any
hiring agreement or arrangement or practice with District 2 or
with any other labor organization except as authorized by Section
8 (a) (3) of the Act.
WE WILL NOT encourage or discourage membership in any labor
organization.
THE BABCOCK• & WILCOX COMPANY 2121
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of rights guar-
anteed by Section 7 of the Act.
WE WILL reinstate and make, whole the following individuals
for the discrimination against them :
Stephen Mrazek
Walter Smith
Michael Duncovich
Joseph Marin
All our employees are free to become, remain, or to refrain from
becoming or remaining, members of the above-named Unions, 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. We will not discriminate in regard to hire or tenure of employ-
ment or any term or condition of employment against any employee
or applicant for employment because of membership in or nonmem-
bership in any such labor organization.
THE BABCOCK & WILCOX COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted 'or 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Appendix B
To ALL MEMBERS OF DISTRICT No. 2, INTERNATIONAL BROTHERHOOD OF
BOILERMAKERS, IRON SHIP BUILDERS AND HELPERS OF AMERICA, AFL
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause The Babcock & Wilcox
Company, or any other employer, to require employees or appli-
cants for employment to be members of District No. 2, Interna-
tional Brotherhood of Boilermakers, Iron Ship Builders and
Helpers of America, AFL or of any other union or to obtain clear-
ance or job referrals from us, except as permitted by Section 8
(a) (3) of the Act.
WE WILL NOT perform, maintain, or otherwise give effect to any
hiring agreement or arrangement or practice with The Babcock &
Wilcox Company, or with any other employer, except as author-
ized under Section 8 (a) (3) of the Act.
WE WILL NOT cause or attempt to cause The Babcock & Wilcox
Company, or any other employer, to discriminate in any manner
2122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against employees or applicants for employment in violation of
Section 8 (a) (3).
WE WILL NOT in any like or related manner restrain or coerce
employees or prospective employees of The Babcock & Wilcox
Company, or of any other employer, in the exercise of rights
under Section 7 of the Act.
WE WILL withdraw objections to the employment of members
of Lodge 23 and make whole the following such members for the
discrimination caused against them :
Stephen Mrazek
Walter Smith
Michael Duncovich
Joseph Marin
DISTRICT No. 2, INTERNATIONAL BROTHERHOOD
OF BOILERMAKERS , IRON SHIP BUILDERS AND
HELPERS OF AMERICA, AFL,
Labor Organization.
Dated------- --------- By-------------------------------------
(Title of Officer)
Dated---------------- By-------------------------------------
(Business Agent)
This notice must remain posted for 60 days from the date hereof,
.and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges filed by the four individuals named in the caption above, the Gen-
eral Counsel for the National Labor Relations Board issued a consolidated com-
plaint on May 14, 1953, against Respondent Company (The Babcock & Wilcox Com-
pany) and Respondent District No. 2 (a labor organization affiliated with Interna-
tional Brotherhood of Boilermakers, Iron Ship Builders and Helpers of America,
AFL) alleging violations of Section 8 (a) (1) and (3) of the Act as to the Respondent
Company and of Section 8 (b) (1) (A) and 8 (b) (2) as to Respondent District 2.
Copies of the complaint and charges were served upon the Respondents; the Re-
spondents, in turn, filed answers denying the commission of the unfair labor prac-
tices alleged
Pursuant to notice, a hearing was held in New York City in December 1953 and
January 1954, before a duly designated Trial Examiner. All parties were repre-
sented by counsel and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the issues. The
parties were afforded opportunity to present oral argument before the Trial Exam-
iner and to submit briefs and proposed findings of fact and conclusions of law. All
parties submitted very competent briefs which have been most helpful to the Trial
Examiner. Motions of the Respondents to dismiss the complaints are disposed of
-in accordance with the following findings of fact and conclusions of law.
Upon the record,' and upon observation of the demeanor of witnesses, I make
the following:
1 The transcript is hereby corrected in accordance with the parties' stipulation, which
-stipulation is also hereby included in the record
The testimony of Arthur P. Smith was stricken at the hearing upon the General Counsel's
Jnotion That ruling is hereby reconsidered and reversed
THE BABCOCK & WILCOX COMPANY
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
2123
Respondent Company, a New Jersey corporation with principal offices in New
York, New York, is engaged in several States in the manufacture, sale, and installa-
tion of steam boilers and related products. The present case arises in Astoria, Long
Island, New York, where the Company is erecting steam boilers for Consolidated
Edison Company of New York. In 1952 the Company's interstate purchase of mate-
rial and equipment for this project exceeded $900,000.
The Company, I find, is engaged in commerce within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
The complaints allege that Respondent Company and Respondent District 2 have
maintained and performed an agreement which unlawfully requires membership in
District 2 as a condition of employment and/or which unlawfully gives employment
preference on the basis of such membership. The complaints further allege that the
four charging individuals-Stephen Mrazek, Walter Smith, Michael Duncovich, and
Joseph Marin-were discriminatorily denied employment at the Company's Astoria
project because of these allegedly unlawful requirements respecting membership in
District 2. These four individuals were not members of, or otherwise directly affil-
iated with, District 2; they were, rather, members of Lodge No. 23, another subordi-
nate lodge of International Brotherhood of Boilermakers, Iron Ship Builders and
Helpers of America, AFL, herein called the International? It will be helpful at the
outset to consider the organizational and economic situation affecting District 2 and
Lodge 23.
The subordinate lodge, such as Lodge 23, is the international's basic unit of or-
ganization. Its charter from the International allocates to it specified "jurisdiction"
both with respect to territory and nature of work. (For example, there are so-called
railroad lodges, contract shop lodges, contract shop and construction lodges, ship-
yard lodges, and navy yard lodges.) A subordinate lodge member is normally re-
quired, after taking up work outside the "jurisdiction" of his lodge, to take out a
clearance card from his lodge and deposit it in the lodge having "jurisdiction" over
his new class of work, thus becoming a member of the lodge in which he deposits the
card .3 The International constitution provides sanctions for a member's failure to
observe these requirements. When a man becomes a member of a particular sub-
ordinate lodge, he is expected, according to International Vice-President W. G. Pen-
•dergast, "to confine his activities as a boilermaker to the jurisdiction assigned to
[that] particular subordinate lodge." The "jurisdiction" of Lodge 23, of which the
four aforementioned job applicants were members, is limited to the boiler shop of
the Brooklyn Navy Yard, and it has no assigned "jurisdiction" over building trades
construction work which is also commonly called field work. Lodge 23 has approxi-
mately 120 members.
Respondent District 2 is a district lodge of the International. A district lodge is
composed of several subordinate lodges, all having the same trade "jurisdiction,"
and in turn is allocated specified territorial and trade "jurisdiction" by the Interna-
tional. District 2 is composed of 5 subordinate lodges 4 with an aggregate member-
ship of approximately 620, and has "jurisdiction" over building construction work in
the State of Connecticut and in the New York metropolitan area including the
City of New York, all of Long Island, and the counties of Westchester, Putnam,
Dutchess, Rockland, Orange, Sullivan, and Ulster.
District 2 and its constituent subordinate lodges are affiliated with the Building
Trades Council of New York, which is in turn affilated with the Building and Con-
struction Trades Department, AFL. The Building and Construction Trades De-
partment forwards Building Trades quarterly cards to the Trades Council which in
turn issues them to its component organizations, including District 2, for distribution
to their membership; each member of the subordinate lodges comprising District 2
was entitled to such card. Lodge 23 was not affiliated with District 2-the boiler-
9 The international has amalgamated with the Blacksmiths Union.
3 The rule iespecting the deposit of clearance cards (see ait. I, sec. 2, and art X, sec 4,
Subordinate Lodge Constitution-General Counsel's Exhibit No 3, pp. 60, 86), does not
.apply "where working agreements exist between Subordinate Lodges" (General Counsel's
-Exhibit No 3, p 86)
4 Lodges 21, 24, 45, 200, and 245
2124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maker unit of the New York Building Trades Council-and its members were not
entitled to such cards.5
On May 2, 1950, Lodge 23 made application to District 2 for admission to the
latter. Meetings between District 2 and Lodge 23 were held, and Lodge 23's re-
quest was denied. Lodge 23 then submitted the matter to Charles J. MacGowan,
the International's president, and MacGowan sent the following letter to Lodge 23
on May 28, 1951:
I examined our records and made some investigation of the whole situa-
tion surrounding District #2 and I find the following•
1. Lodge #23 was chartered and has operated since it was chartered as a
Navy Yard Lodge.
2. District #2 was chartered and has operated strictly in the building and
construction industry. It has no jurisdiction in the Navy Yards or the shipyards.
It is therefore my opinion that District #2 could not accept your Lodge, or
any other Navy Yard Lodge or shipyard Lodge into affiliation in that District,
unless and until the International Executive Council enlarged its jurisdiction
upon proper presentation by all interested parties.
Therefore, it is my ruling that Lodge #23 is not eligible to affiliate with District
#2 and District #2 could not accept your affiliation even if they were so
minded, any more than you could affiliate say with District #12 on the New
York Central Railroad.
Subsequent to MacGowan's letter, International Vice President Pendergast discussed
the matter with representatives of District 2 and Lodge 23, and on July 6, 1951,
Pendergast sent the following letter to International President MacGowan, with
copies to District 2 and Lodge 23:
In compliance with your instructions the above conference was arranged and
held at the New York office on Tuesday, July 3, 1951, at 1l a. m. Present at
the conference were Brothers Cook, Gallo, and Bucco, representing Lodge #23,
and Brother Boylan, assistant to the Business Manager of District #2, repre-
senting District #2.
It was explained that the jurisdiction of all District and Local Lodges were
allocated by the International Executive Council and that the jurisdiction of
District #2 embraced all field and construction work in the territory allocated
by the Executive Council at the time District #2 was organized, and amended
from time to time. The representatives of Lodge #23 were advised that any
change in the jurisdiction would have to be taken up with the International
President and the Executive Council.
However, it was understood by all present that the practice now in effect
would not be changed, to wit: The members of the Lodges #21, 24, 45, 200,
and 245 would get preference on employment on all field and construction
work under the jurisdiction of District #2, and would be entitled to Building
Trades Quarterly working cards. The members of all other local unions of
the International Brotherhood, within the territory under the jurisdiction of
Distict #2, which local unions are not affiliated with District #2, should be
employed on field and construction work before any new members are initiated
or clearance cards accepted in any local union affiliated with District #2.
These members would not be entitled to receive Building Trades Quarterly
working cards, but would be entitled to employment before members of the
International Brotherhood from out of the State were employed on any job
under the jurisdiction,of District #2. [Emphasis supplied.]
Lodge 23 President Thomas Cook and Financial Secretary Nicholas Gallo went to
Kansas City, Kansas, in April 1952, to take up with the International executive
council at International headquarters the matter of Lodge 23's affiliation with
District 2. Harry Nacey (who is the chairman or head of District 2, and the busi-
ness manager of District 2 and of its five subordinate lodges) represented District 2
in opposing Lodge 23's request before the executive council.6 By letter dated May
5 Although Vice-President Pendergast claimed that some members of Lodge 23 did
receive these cards, the record does not support such assertion
6 On this occasion, according to Gallo's credible testimony which Nacey denies, Nacey
offered employment to Gallo at the Astoria project if Gallo would "forget this thing "
And, according to Cook's credible testimony which Nacey also denied, Nacey told Cook
on this same occasion that if they would dispose of the matter of Lodge 23's affiliation,
Cook himself would have no concern about his own employment, that Cook "could calf
up [Nacey] and get a job anytime [Cook] wanted."
THE BABCOCK & WILCOX COMPANY 2125
7, 1952, MacGowan advised Lodge 23 and District 2 that the executive council
had sustained MacGowan 's decision on the matter as contained in MacGowan's
letter of May 28, 1951, set forth above.
Lodge 23 protested the executive council 's decision and added in a letter of
May 29, 1952 , to MacGowan that "if the International cannot assist us in any
way then Local # 23 must take further procedure ." Not hearing otherwise from
the International , Lodge 23 advised MacGowan on November 9, 1952, that "cir-
cumstances compel us to retain Legal Counsel . Conditions (work ) have deteriorated
to such a phase that it leaves us with no alternative ." This same communication
also advised MacGowan that Lodge 23's next step was "the Law of the Land."
On December 4, 1952, MacGowan directed all members of Lodge 23 , as follows:
For a considerable time past, there has been a continuous exchange of
correspondence between the officers of Lodge # 23 and the International Head-
quarters with respect to the claims of Lodge #23 for outside shop and field
jurisdiction.
On several occasions , the matter has been acted upon by the International
Executive Council and so that you may be familiar with the duties of the
Council, you are directed to Section 3 of Article III, International Lodge Con-
stitution , pages 10 and 11, reading as follows:
The Executive Council shall be empowered to charter District , State, Sub-
ordinate and Auxiliary Lodges.. . .
Then in Section 5 of the same Article on page 11, captioned "Adjustment
of Grievances", you will find the following:
The Executive Council , in conformity with the Constitution and By-Laws,
and with the Convention declaration of policy as its guide , shall hear
and determine all grievances referred to it, and shall recommend remedies
or adjust the same as the gravity of the case may require.
Thus the Constitution grants to the Executive Council , first, the duty to charter
a Subordinate Lodge and define its jurisdiction when issuing the charter.
Second, if any disputes , including the question of territorial jurisdiction, shall
be referred to the Executive Council , then the Council will handle the matter
and render a decision.
Therefore , at the meeting of the Executive Council on November 13, 1952, the
following motion was unanimously adopted:
That the International President notify all of the members engaged on
field construction work, now members of Lodge #23, or who are not
employed in the Navy Yard, that it is the decision of the Executive Council
that Lodge #23 is a Navy Yard Local and all members not employed
at the Brooklyn Navy Yard should transfer their membership to the Local
Union having jurisdiction over their work.
The foregoing decision repeats again that the jurisdiction of Lodge #23
is only in the Brooklyn Navy Yard and also that any members of Lodge #23
not employed in the Brooklyn Navy Yard should immediately take their clear-
ance cards and transfer the same to the Local Union having jurisdiction over their
present employment . In conformity with that action , each of you who is not
now employed in the Brooklyn Navy Yard should request your clearance card
and deposit the same in the proper Local Union on or before January 1, 1953. I
trust that each of you will comply with this direction of the Executive Council.
A special meeting of Lodge 23 was held in mid -December to discuss matters
raised by this December 4 directive of President MacGowan . According to Gallo's
credible testimony , the group decided to retain attorneys and to collect a fund
"to find out why they could not get employment , when there is jobs available." As a
result of the meeting, Lodge 23 officers prepared and circulated the following letter
among the lodge membership pursuant to which funds were received.
The time has come for a show down
Your Local #23 now under new officers is trying to get you work at a Union
scale of wages, (in our own territory).
If and when another RIF happens in the Navy Yard, we want to employ you.
In order to do this we need your assistance now, NOT LATER AFTER WE
WIN.
We are asking you for a voluntary -Contribution at the present time of $25 00.
If you are in favor of this please check the square below.
2126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
District 2's Labor Agreements
From July 1950 until June 1953, including all material times here, Respondent
District 2 has had agreements with the Boiler and Plate Work Erecting Contractors'
Association (as agent of "all its present and future [Employers members") and
with independent construction firms, including the Respondent Company. These
agreements are identical in pertinent respects, and they cover "all construction, re-
pair and maintenance work" within District 2's aforestated "jurisdiction." The
contract between Respondent District 2 and Respondent Company provides that:
1. The Employer shall employ none but building construction members in
good standing in the Union on all work done by or for him on all construction,
repair and maintenance work within the Metropolitan area, including the City of
New York, all of Long Island, the Counties of Westchester, Putnam, Dutchess,
Rockland, Orange, Sullivan and Ulster, all within the State of New York, and
coming within the jurisdiction of District No. 2, as set forth in the Constitution
of the International Brotherhood of Boilermakers, Iron Ship Builders and
Helpers of America (hereinafter referred to as the "International"), the Build-
ing Trades Department of the American Federation of Labor, and agreements
of record as to work jurisdiction entered into between the International and other
Internationals and Local Unions affiliated with the A. F. of L The Employer
further agrees that he will demand and see the working cards and Building.
Trades quarterly cards of Employees before employing them.
2. The Union shall furnish the Employer, to the best of its ability and within
a reasonable time, with such competent mechanics and helpers as the Employer
may reasonably require, on the terms and conditions contained in this Agreement.
The members of the Union shall not refuse to work with mechanics and help-
ers who are not members of the Union when the Union has failed to supply a
sufficient number of mechanics and helpers.
3. Boilermaker Foremen and Pushers shall be paid-up members of the Union„
with up-to-date quarterly Building Trade Cards issued by District No 2.
14. A member shall be employed to assist the first three (3) welders and an-
other member for additional three (3) welders up to six (6) welders or fraction
thereof.
The duties of the member shall be servicing the welder-, such as pulling cable„
delivering wire, or other necessary work required by the welders to help the
progress of the job.
29. The Business Manager of the Union and the job stewards shall have the
right to examine working cards and pay envelopes of all members of the Union,
and the Business Manager shall have the right with a committee of men em-
ployed on construction work to examine the payroll of the Employer. The
Business Manager shall also have access to the work at all times. However,
he shall comply with all general conditions of the job regarding passes, entrances.
to be used, etc.
30. It shall be the duty of the Business Manager of the Union to appoint
all job stewards on every job who shall be employed at all times during the
operation of the job. However, a temporary steward shall be appointed by
the men employed until such time as a permanent one is appointed. No job
steward shall act in the capacity of foreman or pusher except as provided for
in Paragraph 9.
31. The duty of all stewards is to enforce the rules of this Agreement and
to report to the Business Manager or to the business office of District No. 2,
any infractions or violations that may come to his notice. If a job steward be
discharged for calling attention to any of the terms of the Agreement he shall
be at once reinstated until the matter is settled as provided herein. The steward
shall obtain from the office of District No. 2 any and all booklets issued by
the New York State Industrial Commissioner with respect to the safety code.
* * * * * * *
37. All grievances other than those pertaining to general wage rates or juris--
dictional disputes that may arise on any job covered by this Agreement, shalt
be handled in the following manner without permitting the grievance to interfere
with the progress or prosecution of the work in process:
The business manager, or one of the field representatives he may designate,
shall meet with the employer for the purpose of reviewing the dispute and
adjusting same.
THE BABCOCK & WILCOX COMPANY 2127
In the event that the dispute remains unadjusted following such a review by
the business manager, or one of the field representatives he may designate, and
the employer , then at the instance of either party on ten days' written notice
by mail, the same shall be submitted to a Board of Arbitration for determina-
tion, subject , however, to the provisions of this agreement.
39. Any provisions of this Agreement which provide for Union Security or
employment in a manner and to an extent prohibited by any law or determina-
tion of any governmental board or agency, shall be and hereby is of no force
and effect during the terms of said prohibition . It is understood and agreed,
however, that if any of the provisions which are hereby declared to be of no
force and effect because of restrictions imposed by law, are determined either
by Act of Congress or other legislative enactment or by a decision of the court
of highest recourse to be legal or permissible, then any such provisions shall
immediately become or remain effective during the remainder of the term of
this Agreement. The Union reserves the right to renegotiate any of the pro-
visions, which may be of no force or effect In the event that there shall be
change in applicable laws as to Union Security, the parties shall renegotiate
any provisions concerning Union Security.
In the event that any provisions of this Agreement shall be declared to be
in violation of law, the remaining provisions of this Agreement shall remain
in full force and effect.
40. This Agreement and all the terms and conditions thereof shall be binding
upon the parties hereto , their successors and assigns for a period commencing
JULY 1st, 1950 and ending on the 30th day of JUNE 1953.
Additional Economic Considerations
Employment opportunities in the building and construction industry vary from
locale to locale, from county to county, and from city to city. There may be a
comparative shortage of boilermaker jobs in construction work in New York City,
for example, while at the same time there may be many such jobs available in other
parts of the State. Needless to say, the location of a job in relation to the boiler-
maker's home is an important factor in appraising the desirability of any given job,
for any given man. And, in addition to wage differences , still another important
factor affecting the desirability of these jobs is the duration of the project-whether
it be for 1 week or I month or 1 year or longer. The Astoria job under consideration
pays substantially higher wage rates than boilermakers receive at the Brooklyn Navy
Yard, as is discussed later, and in recent years at least, this Astoria project has been
the longest project in New York City with the highest employment rate.
The territorial trade "jurisdiction" assigned to Lodge 23 by the International
Brotherhood is limited, as already noted, to the boilerroom at the Brooklyn Navy
Yard , a Government installation . As in much Government employment , there is
occasional apprehension of layoffs or so-called reductions in force, commonly called
RIFS. Moreover, boilermakers in Government employ may, for the above or any
number of other reasons , desire to be engaged in private construction work rather
than in Government Navy Yard employment. Whether it be because of actual
RIFS , or the fear of such layoffs, or for other personal reasons, there were in April
1952 about 36 members of Lodge 23 who were not employed in the Navy Yard and
who were also either employed , or seeking employment , in construction work. Ap-
parently many such members of Lodge 23 were of the impression , rightly or wrongly
need not be decided at this point, that their opportunities for such construction jobs
were limited because they were not members of District 2. A majority of Lodge
23's membership was unemployed in December 1952 and the lodge decided at the
special meeting that month (the same meeting at which they took up MacGowan's
November 1952 letter) that "they wanted to see why they could not receive work."
Lodge 23 officers Gallo and Thomas Cook had gone to the April executive council
meeting in Kansas City, according to Gallo's credible testimony, to support Lodge
23's application for admission to District 2 because of "the matter of unemploy-
ment in Lodge 23" and "to get jobs for members of [Lodge 23]." Meanwhile, the
International policy set forth in Pendergast's letter of July 1951 has been, in effect,
namely, that the subordinate lodges comprising District 2 "get preference on em-
ployment on all field and construction work under the jurisdiction of District #2 and
would be entitled to Building Trades Quarterly working cards" and that such pref-
erence specifically exists as against Lodge 23 or any other subordinate lodge within
the geographical jurisdiction of, but not affiliated with, District 2. Pendergast's letter
further provides, it is recalled , that members of these nonaffiliated lodge members
2128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
do not receive quarterly cards even when hired for work within District 2's
geographical jurisdiction.
Hiring Arrangement and Practice Between District 2 and the Company
Nacey-chairman of District 2, the business manager of District 2 and its con-
stituent lodges, and the president of constituent Lodge 21-was District 2's sole sig-
natory to the contract with Respondent Company; he testified that he merely sent the
contract to the Company for the latter's signature after negotiating an identical agree-
ment with the Contractors ' Association . Nacey testified that District 2 has not en-
forced paragraph 1 of the agreement and never intended doing so; he also testified,
however , that he had never discussed this paragraph with the Company , even be-
fore the contract was executed , and that he has never advised the District 2 member-
ship that paragraph 1 was not intended to be enforced . Nacey further explained that
the parties have operated under the contract but that in doing so he was ever mind-
ful of paragraph 39 of the contract setting forth the so-called saving clause. How-
ever, Nacey was unable to state which contract provisions were, by reason of para-
graph 39, legal or illegal in view of the action of any governmental board or agency
as stated in that paragraph.
John Hagan is the Company 's boilermaker foreman at Astoria to whom the four
charging individuals applied for employment , as is hereinafter discussed . The con-
tract under consideration required that "Boilermaker Foremen and Pushers shall be
paid-up members of [one of District 2's constituent lodges ], with up to date quar-
terly Building Trade Cards issued by District No. 2." Hagan is a member of Lodge
21, the same constituent lodge of which Nacey is president and business manager.
Hagan testified that he considers himself bound by the International 's constitution
and that he was specifically familiar with the constitutional requirement that mem-
bers of the International "shall, if possible , avoid working with nonunion mechanics
and helpers of our trade , and shall use their best efforts to encourage the Mechanics
and Helpers to join this International Brotherhood."
Hagan testified that he had no knowledge of the existence of District 2's contract
with the Company , and that the Company had never given him a copy of the con-
tract or otherwise instructed him to follow its provisions or the provisions of any
other contract . Hagan also testified that no company representative has ever in-
structed him to reject any boilermaker applicants who belong to Lodge 23 or who
do not belong to either the International Brotherhood or District 2 or who do not
have Building Trades quarterly cards or are not referred by District 2. When asked
whether he "has been required by the union or anyone else to employ only union
men," Hagan replied , "Not necessarily , it is supply and demand ." Nacey testified that
Nacey had never given Hagan instructions not to hire Lodge 23 men or men without
Building Trades cards.
Hagan further testified , however, that he has read and is otherwise familiar with
the provisions of the so-called Blue Book ( the contemporaneous contract between
District 2 and the Contractors ' Association , the relevant provisions of which are
identical to the aforestated provisions of District 2's contract with the Company)
and that constituent lodges of District 2 distributed copies of this Blue Book to their
members. Hagan testified that as a "Union Member" he was required to refer to the
entire Blue Book and "as foreman" he had "to go along with the book" and that he
did in fact follow this Blue Book on the Astoria project.
Hagan further testified concerning his actual hiring practices at the Astoria proj-
ect. He and the job superintendent decide how many boilermaker employees are
needed at any given time. Hagan then calls District 2's day hall for men, and if the
District is unable to supply his needs then he hires boilermakers who shape up at the
project gate . Hagan follows the Blue Book in hiring individuals , as noted above, and
he always checks the union membership of employees before engaging them; he
does not now have, nor has he ever had, employees on the job who are not Inter-
national Brotherhood members. While Hagan further stated that membership in a
particular lodge does not influence his selection of men for hire, he also testified
that he would hire men "as long as they are . members of the International
Boilermakers" and that he asks applicants for their quarterly cards when he does
not know them; that he hired men with quarterly cards at the beginning of the
project allegedly in order to have the best qualified personnel to get the project
started, but that he would hire men without such cards depending on "supply
and demand ." Hagan thus explained : "if we did not have enough men, then we
would take . . . boilermakers from other ["Boilermaker"] locals, or other strange
men, who have worked in the outside building construction field."
It is recalled that District 2 had contemporaneous contracts with other construc-
tion concerns on all its various jobs throughout Connecticut and New York State,
THE BABCOCK & WILCOX COMPANY 2129
as well as its contracts with the Respondent Company and the Contractors' Asso-
ciation , and that all such contracts are identical in material respects . Claiming that
paragraph 1 of all these other contracts was not enforced and that such circum-
stance would support its assertion that paragraph 1 of Respondent Company's
contract also was not enforced , District 2 showed that two of the alleged discrim-
inatees and other members of Lodge 23 , as well as other boilermakers unaffiliated
with District 2, were employed on various boilermaker projects within District 2's
"jurisdiction ." District 2 also showed , in this same connection , that boilermakers
who were not members of District 2 have been employed at the Astoria project,
including some members of Lodge 23 .7 Those boilermakers , who obtained such
employment within District 2's "jurisdiction " and who were not members of Dis-
trict 2, did not present quarterly cards-for none had been issued to them-in order
to obtain and retain this employment.
District 2 also called individual witnesses who testified to the same general effect,
namely, that they obtained employment as boilermakers within District 2's "jurisdic-
tion" even though they were not members of District 2 and accordingly had no
Building Trades quarterly cards at the time. However , one of these witnesses,
Frank Hamill , testified that while a member of Lodge 23, he applied for and obtained
such employment in Glenmont , New York, after the hiring foreman asked for
and Hamill showed the foreman his "union ticket ." Another member of Lodge 23,
respondent witness William H. Connelly, similarly got such job upon presentation
of his "union dues" card to the foreman . Thomas Duffy was another member of
Lodge 23 who obtained employment on various projects within District 2's "juris-
diction." Respondent witness Duffy testified that hiring foremen on such jobs always
ash to see an applicant 's "union card" and that "if you have no card, you don't
go to work."
Thomas Sullivan was another witness called by District 2. Although testifying
at one point that he began working at the Astoria project in 1953 while still a
member of Lodge 23, Sullivan 's further testimony demonstrates that he became a
member of Lodge 45-one of the five component lodges of District 2-before such
employment began . Sullivan also testified , in any event , that he obtained such job
through District 2 and that Walter Graber , a District 2 field representative and an
assistant of District 2 Business Manager Nacey ( there will be more identification
of Graber later in this report ), "hired me in the [District 2] Day Hall" and that
Graber instructed Sullivan "to go to work in Astoria ." Sullivan accordingly reported
to Foreman Hagan. When asked at the hearing whether Sullivan informed Hagan
at the time that Graber had sent him to Hagan, Sullivan replied: "He [ Hagan]
seemed to know just about what it was . He asked me what local it is, I told him
45. Rather , he said, `Where do you come from.' I said, `45."' Hagan said nothing
further upon hiring Sullivan , and merely sent Sullivan to the timekeeper 's office.
Specific Cases of Alleged Discrimination
The General Counsel contends that the four named individuals applied for work
at the Astoria project, one in December 1952 8 and all in January 1953, and that
7 The following table is extracted from this evidence as to the Astoria job The beading,
"No of -Alen ," iefei s to total number of boilermakers on the fob , the figures in the next
column , entitled "Non-Dist . 2 " are included in the "No of Men " column , and the figures
in the last column , headed "Lodge 23," are included in the pieceding two columns Thus,
for the week ending Octobei 1, 1952 , these u eie 109 boilermakers on the project, of which
number 8 were not members of District 2, and 1 of the 8 nas a meurbei of Lodge 23 All
109 were members of the Intei national
Il'eck ending
Number
of men
Non-
Ds.stri.et 2 Lodge 23
Oct 1 , 1952-------------------------- 109 8 1
Oct 29 , 1952-------------------------- 119 9 1
Dec 3, 1952-------------------------- 150 11 1
Jan 7, 1953-------------------------- 157 10 1
Feb 4, 1953-------------------------- 199 27 2
Mar. 4, 1953-------------------------- 220 45 2
Apr 1 , 1953 ----------------- 204 41 1
May 6, 1953-------------------------- 198 40 1
May 20 , 1953-------------------------- 234 39 1
8 The complaints were amended at the hearing to cover the December 1952 application.
See N L R. B v. Gottfried Baking Co , Inc., 210 F 2d 772, 783 (C A. 2), and cases
cited therein.
338207-55-vol. 110-135
2130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were discriminatorily refused employment because of an unlawful hiring arrange-
ment between the Company and District 2. Because the Respondents raise issues
concerning the bona fides of the respective applications, it is necessary to set forth,
in greater detail than ordinarily necessary the individual situation of the respective
applicants.
Harry Nacey, the chairman and business manager of District 2, has his office in
New York City at 14th Street and 4th Avenue. District 2 also maintains a "Day
Hall" on 23rd Street where, according to Nacey, boilermakers of any lodge gather
to obtain employment information. Nacey has three assistants or so-called field
representatives, namely, Walter Graber, Charles Alexander, and Daniel Boylan.
Graber is also secretary of District 2 and a trustee of Lodge 21 (Nacey's own lodge),
both being elective posts. Alexander is also vice president of Lodge 21, chairman
of its board of trustees, and Lodge 21's delegate on District 2's board-an elective
post. Boylan, together with Nacey, represented District 2 in its aforementioned
conferences with Lodge 23 under Pendergast's auspices (see Pendergast letter of
July 6, 1951), and he and Graber were signatories , in behalt of District 2, of
District 2's aforementioned agreement with the Contractors' Association. Their
regular duties require these field representatives to devote a portion of their time
at the day hall, as well as at the District (Nacey's) office, and they also regularly
visit job sites at which District 2 members 9 are employed. Alexander testified, in
this connection, that he does not examine "working cards" at the jobs, that "usually
the steward takes care of that Otherwise, men wouldn't be an the job."
Nacey's office at 14th Street receives job information from the various projects
which is in turn given to Graber, Alexander, and Boylan at the District's day half
where unemployed boilermakers congregate and where, according to Alexander,
"we look for the men to shape up and send them out and tell them where the jobs
are." According to Nacey, these three individuals are merely supposed to post this
job information for the benefit of unemployed boilermakers.lo
Stephen Mrazek, a member of Lodge 23 at all times material here, has been en-
gaged in boilermaker work, including construction or field work, for 17 years. At
various times in 1952 and 1953 Mrazek has been employed on jobs within the "juris-
diction" of District 2 and covered by District 2 contracts in Albany, Garden City,
Dan Kamer Point, and Peekskill. On another project several years before, Mrazek
had worked under Hagan's foremanship.
Mrazek was laid off from the aforementioned Garden City job for economic rea-
sons on or about December 3, 1952. His wife was seriously ill at the time and her
physician advised Mrazek that her condition was such that Mrazek should obtain
employment near Mrazek's home which is in Mt. Vernon, New York.
On December 4, 1952, Mrazek approached Foreman Hagan at the Astoria job
site and inquired as to "chances of getting on." Mrazek tendered Hagan his Lodge
23 union book at the same time. Looking at the book, Hagan observed, "You haven't
got a Building Trades Card?" and Mrazek replied he hadn't. Hagan then stated,
"I am sorry, my hands are tied here. I need men, but you go down to 14th Street
and get the okay. I will put you on as soon as you come back." The next day,
Mrazek went to the District's day hall on 23rd Street where he asked Field Repre-
sentative Daniel Boylan for a job at the Astoria project, and he related to Boylan
his (Mrazek's) conversation with Hagan. Boylan merely replied, "You haven't got
a Building Trades Card You know how it is," to which Mrazek commented, "No, -
I haven't got a Building Trades Card, but I need a job." li
Mrazek sought employment at the job site approximately three times in December
1952, each time without success. ' He returned to the project again on January 5,
1953, and had a conversation with Hagan similar to one they had on December 4.
That same day, January 5, Mrazek went to the district office on 14th Street and told
the office secretary that he wanted to see Nacey concerning a job at Astoria. The
secretary asked Mrazek to leave his phone and union registration numbers, stating
that either she or someone else would call Mrazek the following day. No one
called. At the day hall early in January 1953, Mrazek also inquired of Field Repre-
sentative Graber concerning employment at Astoria whereupon Graber questioned
'District 2 actually has no members as such In this and similar contexts, I refer to
the members of the five lodges comprising the District
"Based upon an analysis of their testimony and observation of their demeanor as wit-
nesses, Nacey, Alexander, Boylan, and Graber were evasive and unreliable on critical
issues
11 I do not credit Boylan's testimony that this conversation did not occur as set forth
above.
THE BABCOCK & WILCOX COMPANY 2131
Mrazek concerning his lodge number . When Mrazek then showed Graber his Lodge
23 union book , Graber remarked that Mrazek was "in very good standing ." Mrazek
repeated his request for employment at Astoria , whereupon Graber finally com-
mented, "Look , you know what the score is; I don't have to tell you anything." 12
Mrazek was unemployed from December 4, 1952 , until sometime in February
1953, when he obtained boilermaker employment in Newburg , New York. A trustee
of one of District 2's constituent lodges sent Mrazek to this job when Mrazek, while
in the day hall one day in February , stated he would accept such employment.
Joseph Marin, Walter Smith , and Michael Duncovich have been members of Lodge
23 at all material times.
Marin has been a boilermaker for 14 years and, since 1945, has been engaged in
construction work within District 2's "jurisdiction" as his present job is. Apart from
the incident involving his job application at the Astoria project , as related hereinafter,
Marin has not been asked for a Building Trades card or District 2 clearance in ob-
taining employment . Marin was unemployed on January 8, 1953, when he made such
application at Astoria . He has since been employed on various jobs, including one
which paid an hourly rate of $1.80 as compared with Respondent Company's rate
of $3 30 an hour at the time.
Smith has been in the boilermaker trade for 35 years, including jobs in constructioir
work and 1 such job at another project several years ago was under Hagan 's foreman-
ship. Smith has not been engaged in Government , as distinguished from private con-
struction , work for 10 years. His hourly rate of pay was $ 2.10 on January 8, 1953,
and is presently $2.06; the Respondent Company's wage scale at Astoria was $3.30
an hour in January 1953 , and is now $ 3.50 an hour.
Duncovich has been a boilermaker for 20 years , during part of which period he
has been engaged in construction work. Duncovich is employed at the Brooklyn
Navy Yard , where he has been since 1951. In January 1953 , Duncovich 's gross salary
was $84 40 for a 40-hour week , as compared with Respondent Company's scale of
$132. Duncovich testified that he was desirous of getting into private employment
because of its higher wage rates and that this was his reason for seeking employ-
ment at the Astoria project on January 8, 1953.
Smith and Marin went to the project on the morning of January 8, 1953, and asked
Foreman Hagan for boilermaker employment. Hagan inquired of which lodge they
were members and whether they had Building Trades quarterly cards. When they
informed Hagan that they were Lodge 23 members and had no quarterly cards,
Hagan replied that he couldn't do anything for them but that he would hire them if
they obtained an "Okay" from District 2 headquarters at 14th Street . Smith and
Marin then went to the District 's 14th Street office where they spoke with Field Rep-
resentative Graber. They related to Graber their conversation with Hagan includ-
ing Hagan 's statement that he would employ them if they obtained an "Okay."
According to Smith's and Marin's credible testimony , Graber told both men that
"he was sorry , he couldn't do nothing for us, that they had men winding up on other
jobs, and they were holding those jobs for their [ the District 's] membership." When
Smith then remarked that "we used to get jobs out of there," Graber agreed that was
so, but explained that "he only gave us the work when they were very busy and had an
abundance of work to spread around." 13
On January 8 Duncovich also asked Hagan for a job at the project. Hagan in-
quired whether Duncovich , as well , had a Building Trades card . And when Dunco-
vich replied that he was a member of Lodge 23 and did not have such card, Hagan
stated , according to Duncovich 's credible testimony , that Duncovich should "go-
downtown and get fixed up. I can't do nothing for you." Duncovich then went to
the day hall on 23rd Street where he asked Field Representative Alexander for a_
job, Field Representative Boylan also being present at the time . Alexander asked
whether Duncovich had a Building Trades card , and, when Duncovich replied he had
none, Alexander stated that Alexander "hadn't anything at the present time" 14 and
Boylan remarked that Duncovich "was getting old " From the day hall , Duncovich
went to district headquarters on 14th Street where he asked Field Representative
Graber for a job and related his conversation with Foreman Hagan earlier that day.
Duncovich showed Graber his "Union book" at Graber 's request , whereupon Graber
said that there were no jobs and that Hagan "should know better" than to send Dunco-
vich to the district office.
12 I do not credit (: caber 's conflicting testimony
13 I do not credit Graber ' s different version of this conversation
14 1 do not credit Alexander 's contrary testimony.
2132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions as to Unlawful Hiring Arrangement and Practice
The facts plainly show , in my opinion , that membership in the Boilermakers is
a condition of employment at the Astoria project, and that such condition was part
of the employment arrangement between Respondent District 2 and the Respondent
Company. Whether, on its face, paragraph 39 has the effect of postponing the
-operative date of the union-security provisions of paragraph 1-and I find it did
not have such effect 15-the actual employment practices in this case are nevertheless
shown to have operated as if paragraph 39 were not in the contract , whatever
construction it be given . Moreover , rather than support Respondent District 2's
position that paragraph 1 was inoperative , the practice under Respondent District's
other contracts further shows that Boilermaker membership was an actual condition
of employment at these other projects as well.
What the record establishes as to those projects within District 2's trade and
geographic "jurisdiction" and covered by its contracts is a practice wholly in accord
with Pendergast 's letter of July 1951 , namely, that boilermaker work in the con-
struction line was given only to members of the International Brotherhood, and
that first preference was given to members of District 2's constituent lodges. That
some members of lodges unaffiliated with District 2 also obtained employment
within District 2's vast territorial jurisdiction does not show otherwise or even
support a contrary result in view of the present circumstances ; for the employment
of such other Boilermaker lodge members after District 2 preference was satisfied
is expressly contemplated by the executive board decision . Some jobs are more
desirable than others , depending on location 'of project , wages, duration of job, and
the like. While some jobs on projects in Connecticut or upper New York State or
in New York City or even at the Astoria project itself were thus held by some
members of lodges unaffiliated with District 2, all it means in this case is that District
2 lodge members were unavailable to assert their preference for such openings at
the time, or that the particular hiring foreman or Nacey or one of Nacey's assistants
gave special consideration to such applicant-but all within "the closed circle" of
Boilermaker membership. See N. L. R. B. v. A. B . Swinerton , 202 F. 2d 511, 515
(C. A. 9), cert. denied 346 U . S. 814.
At the hearing Respondent District 2 took the position that the International
Brotherhood has the right , under the proviso to Section 8 (b) (1) (A ) of the Act,
to determine the jurisdiction of its subordinate lodges and thereby fix the employment
opportunities of members of its respective lodges.16 Such practice is precisely what
the General Counsel is in effect claiming that District 2 and the Company have
carried out under their employment arrangement , and Section 8 (b) (1) (A ) hardly
justifies the practice and arrangement . As far as the Act is concerned , a labor
organization may charter as many lodges as it desires , assign to them whatever
territorial and trade jurisdiction it pleases , and promulgate whatever transfer and
clearance and other similar membership regulations it wants. But a labor organiza-
tion may not take further action , on the basis of its internal structure and rules,
as to cause or attempt to cause an employer to discriminate against employees
because of these union considerations . ". . . while the proviso to Section 8 (b)
(1) (A) protects the union 's rights to prescribe its own rules with respect to the
acquisition or retention of membership therein, it does not authorize the union to
extend the effective scope of those rules so that they determine the right of a member
to the acquisition or retention of a job." (N. L. R. B . v. Philadelphia Iron Works,
15N L. R. B v . Philadelphia Iron Works , Inc, and Local No. 13, Int'l Brotherhood of
Boilermakers etc, 211 F 2d 937 (C A 3), enfg. 103 NLRB 596. 619. N L. R B v Gott-
fried Baking Co, Inc, 210 F 2d 772 , 780 (C A 2 ) Ebasco Sei vices Incorporated and
International Brotherhood of Boilermakers, etc., 107 NLRB 617 ; Local 1664 ( Dock Di-
vision) I. L. A. Dist) ict Council No 1, et at, 103 NLRB 1217, 1239
16 For example : International Vice-President Arthur P Smith testified that , because
of the migratory nature of construction work and in order to be able to provide employers
with a source of competent boilermakeis , the International allocates construction trade
jurisdiction to certain lodges in order "to protect [the members of such lodges ] from the
invasion of that work by other boilermakers [ of other subordinate lodges ]." And, as
already noted, International Vice-President Pendergast also stated that a member of a
particular subordinate lodge is expected , under his obligation as a union member , "to con-
fine his activities as a boilermaker to the jurisdiction assigned to [that ] particular lodge "
And counsel also asseited District 2's contention to be that the International decides the
"jurisdiction " of its various subordinate lodges and that such determination " is binding
on the rights of employees in seeking employment in the boilermaker field."
THE BABCOCK & WILCOX COMPANY 2133
Inc, and Local 13, Intl. Brotherhood of Boilermakers , etc., 211 F. 2d 937 (C . A. 3).17
Respondent District 2 's contention would, if successful in this regard , destroy one
of the very objectives which the Act is intended to accomplish.
The situation involving the four specific cases of alleged discrimination is further
evidence of the actual arrangement between the Respondents and points up the
essential unlawfulness of the situation . Thus there is Foreman Hagan, exercising
managerial prerogatives of hire, who is required by the contract to be a Boilermaker.
member and who is required by the Boilermaker constitution to observe the afore-
mentioned obligations of such membership . (These circumstances alone would spell
out an unlawful hiring arrangement .) Hagan did not reject the men either for lack
of ability to perform the job or for lack of jobs Rather, he required these men
to obtain an "okay" from District 2 in order to give them employment , and District
2 refused such approval because the jobs were being saved for members of District
2's constituent lodges.
Saving for final discussion various contentions as to the charges in this case, which
contentions are hereinafter rejected, I conclude that both Respondents have main-
tained and performed a hiring arrangement under which , and without benefit of
the required 30-day grace period, membership in the International Brotherhood was
a condition of employment with preference for members of District 2 or other
International lodge members referred or cleared by District 2, and Building Trades
quarterly cards being a form of such clearance . Respondent Company has thereby
violated Section 8 (a) (1) and ( 3) of the Act , and Respondent District 2 has thereby
violated Section 8 (b) (1) (A ) and (2 ) of the Act.18
Propriety of the Charges ; Conclusions as to the Refusals to Hire
It is recalled that , at its meeting in mid-December 1952, Local 23 decided to retain
counsel and collect funds to further its efforts in obtaining construction employment
for Lodge 23 members . This was tied in, it is further recalled, with Lodge 23's
efforts to become affiliated with District 2. Counsel was engaged thereafter, some-
time before January 8 , 1953, and this counsel is the same firm of 2 attorneys who
filed the charges in behalf of the 4 aforementioned charging parties in this case
and otherwise represented the charging parties in this proceeding.
One of the charging parties, Mrazek , first applied for employment at the Astoria
project on December 4, 1952. Mrazek and the three other charging parties applied
for such employment on January 8, 1953. Upon their failure to obtain employment,
as already related, these individuals notified Gallo , an officer of Lodge 23 , and Gallo
arranged to meet with them at the offices of counsel whom Lodge 23 had retained
after the mid-December meeting. The meeting with counsel was held in January
1953, and charges in this case were filed later that month against Respondent Com-
pany and in April 1953 against Respondent District 2. Gallo testified that one of
the reasons for originally retaining the attorneys was to file unfair labor practice
charges with the Board , and the record shows that the charges in the present matter
were filed as a result of the January meeting in counsel's office which Gallo and the
four charging parties attended.
Lodge 23 was not in compliance with the filing provisions of Section 9 of the
Act when the complaint was issued in this matter; nor had it achieved such compli-
ance at any earlier date . Claiming that the four aforementioned parties were merely
17International Brotherhood, of Boilermakers , etc (Consolidated Westein Steel Corpo-
ration) , 94 NLRB 1590 . 1594, Local 13, International Brotherhood of Boilermakers, etc.
(The Babcock & Wilcox Co ), 105 NLRB 339, Local 153, International Union, United
Automobile , etc, 99 NLRB 1419 , 1421, Pape Broadcasting Go, 104 NLRB 29, Union
Starch & Refining Go v N L R B , 186 F . 2d 1008, 1011 ( C A 7), cert denied 342
U S 815
18Philadelphna Iron Works , 103 NLRB 596, enfd April 7, 1954 (C A 3) ; Local 13,
International Brotherhood of Boilermakers , etc (The Babcock if Wilcox Co), 105 NLRB
339, Local 803. Liter iwtilowl Br other hood of Boilermakers , etc, 107 NLRB 1011 ; Ebasco
Services Incorporated ( Intel national Brothel hood of Boilermakers , etc ), 107 NLRB 617 ;
International Brother hood of Boilermakers, etc (Consolidated Western Steel Corpora-
tion) , 94 NLRB 1590 , Pei maneate Steamship Coi p , 107 NLRB 1111 , N. L 14 13. v.
Gottfried Baking Co et, al, 210 F 2d 772 (C A 2) , N L R B v George D Auehter Go,
209 F 2d 273 ( C A 5) , N L R B v. McGraw and Co, 206 F 2d 635 ( C A 6). Under
the circumstances , Respondent Company is responsible for the conduct of Foreman
Hagan , and Respondent District 2 is responsible for the conduct of Nacey, Graber, Alex-
ander, and Boylan
2134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"fronting" for Lodge 23 in filing the charges in this case , the Respondents move for
dismissal of this proceeding in view of the statutory requirement that no complaint
be issued "pursuant to a charge made by a labor organization . unless such labor
organization [ shall have satisfied the filing provisions of Section 9 (f), (g), and (h)
of the Act]." 19 Respondents , on this "fronting" issue, rely principally on N. L. R. B.
v. Alslde, Inc., 192 F. 2d 678 (C. A. 6) and on N. L. R. B. v. Happ Brothers Company,
196 F. 2d 195 (C. A. 5).
Respondents further assert that this case essentially involves Lodge 23's efforts to
advance its own position in a "jurisdictional dispute" with District 2. Claiming that
a request for relief by the filing of charges in such a situation constitutes an abuse
of the Board's processes , the Respondents move to dismiss the proceeding on such
basis and they cite in this latter connection the Board 's decision in Vaughn Bowen,
93 NLRB 1147
It is clear , to consider the contentions in reverse order , that discrimination against
employees may not be excused on "abuse of process" grounds merely because such
discrimination arises out of a conflict or jurisdictional dispute between labor or-
ganizations . Indeed, so-called jurisdictional disputes are responsible for the enact-
ment of substantial portions of Section 8 (b) (4) and 10 (k) of the Act, and the
Board and the courts have recognized so-called jurisdictional disputes as the operative
circumstance underlying violations of the same provisions of the Act as are involved
in this case .20 There is no more reason , in my opinion , to deny relief for discrimi-
nation stemming from a union's differences with a sister local of the same parent in-
ternational than where employees are discriminatorily denied employment because
of a conflict between two competing internationals or because of a conflict between
a majority of employees in a unit and a union which would represent them or an
employer which would reject them.
In the aforementioned Vaughn Bowen case the Board denied relief to 2 employees
who were allegedly discharged discriminatorily in a contest of a jurisdictional or
recognition struggle between 2 unions. In that case it was agreed between the
employer, the 2 dischargees , and 1 of the 2 rival labor organizations that the em-
ployer would hire and then fire the 2 individuals for alleged union reasons. The
employer in question did not need the 2 employees when he purportedly hired them
and it plainly appeared that what the Board called a "token" hiring and firing was
solely for the purpose of making a case of alleged discrimination in order to assist
1 of the 2 competing unions. The Board found that a bona fide employment rela-
tionship was never established, for none was ever intended-either by the individuals
or the employer, and it accordingly denied relief as to the 2 individuals.
The present case is completely unlike the Vaughn Bowen situation . Clearly, each
of the 4 charging parties in the present case desired employment at Astoria and
made a bona fide effort to obtain such employment-2 were unemployed at the time
and the other 2 were making substantially less money than Respondent Company paid
its boilermaker employees . And, as in N. L. R B. v. A. B. Swinerton, et at., 202 F.
2d 511, 515 (C. A. 9), cert. denied 346 U. S. 814, the record establishes that the 4
men "would have accepted work if it had been tendered." I accordingly reject
Respondents ' abuse-of-process contention.
The fronting contention is essentially based on the fact that Lodge 23 assisted the
individuals in filing the charge and perhaps paid (which I assume it did) counsel
for participating in the matter , that Lodge 23 retained the same attorneys in respect
to Lodge 23's differences with District 2, and that Lodge 23 stands to gain by an
affirmative Board order here. It is well established, however, that individual em-
ployees are not to be denied rights under the Act because they are members of a
noncomplying union and have been actively assisted and even directed by such
union in the filing of charges and also because such noncompliant may derive some
incidental benefits from a Board order. Thus, the Ninth Circuit Court of Appeals
in N L. R. B v. L. Rooney d Sons Furniture Mfg. Co., 206 F. 2d 730, 731, cert. denied
346 U. S. 937, rehearing denied 347 U. S. 914, held that Local 576 involved in that
case is not a charging party even though "the charges were solicited and prepared by
Local 576 and counsel for that union represented the nominal charging parties at
the hearing ." The court stated (206 F. 2d 730 at p. 732) :
Employees acting individually may assert their rights before the Board without
restriction of Section 9 (h). In the instant case the unfair labor practice charges
were signed and filed with the Board by ten former employees of respondent, each
19 See Al L R R v Highland Park Manufacturing Co , 341 Ti S. 322
20E g, N L R B v Luinmnus Co, 210 F 2d 377, 379 (C A o) , McGraw Construction
Co., Inc., 107 NLRB 1043
THE BABCOCK & WILCOX COMPANY 2135
alleging discrimination and other unfair labor practices as against himself or
herself individually . The charges were in form and in substance assertions of
individual rights. They were not made less so because Local 576 assisted or di-
rected the employees in preparing the charges, or because counsel for Local
576 represented the employees at the Board hearing, or because Local 576 might
incidentally benefit from the Board's order. The problem is essentially the
same as in N. L. R. B. v. Globe Wireless, Ltd, 9 Cir, 193 F. 2d 748, note 1,
where we quoted with approval from N. L R B v. Augusta Chemical Co., 5
Cir., 187 F. 2d 63, 64, as follows:
Granted that the disqualified union was active in assisting , indeed directing,
the employees in preparing their charges , it does not at all follow that the
employees, by accepting that assistance, disqualified themselves.
Nothing to the contrary can be found in N. L. R. B. v. Happ Brothers Company,
Inc., 5 Cir., 196 F. 2d 678, on which respondent relies. In each of those cases
the court held that where the president and chief protagonist of the interested but
disqualified union had filed unfair labor practice charges on behalf of himself
and a great number of other union employees , he was really acting as a repre-
sentative of the union and not as an individual . Those cases have no application
here.
_
Emphasis supplied.1
The Fifth Circuit Court of Appeals in Southern Fuimture Mfg. Co v. N. L. R. B.,
194 F. 2d 59, 61, cert. denied 343 U. S. 964, also distinguished the Alside decision
upon which Respondents rely. In the Southern Furniture case the court followed
its decision in N. L. R. B. v. Augusta Chemical Co, 187 F. 2d 63 , where a noncom-
plying union assisted individual employees in filing charges . The court rejected a
fronting contention as follows (187 F. 2d 63 at p. 64) :
Whatever may have been, or may be, the real purpose of the Statutes under
which these proceedings are maintained , its avowed purpose was not to favor or
promote unions as such. It was to promote and protect the rights of individual
employees to join or not to join unions and to be free from coercion and inter-
ference either way.
Because in practice the unions, as such, have dominated and are dominating,
the scene on which these dramas unfold, it may not be said that individual
employees have no right to act individually in asserting and vindicating their
rights. To do so is to put the cart before the horse, to sublimate the agent
about the principal, to make the tail wag the dog.
We are in complete disagreement with the Respondent's position on this point.
Granted that the disqualified union was active in assisting, indeed directing, the
employees in preparing their charges, it does not at all follow that the employees,
by accepting that assistance, disqualified themselves. (Emphasis supplied.]
In its Happ case cited by Respondents, the Fifth Circuit affirmed, by distinguishing,
its Southern Furniture and Augusta Chemical decisions.
Similarly, in N. L. R B. v Coal Creek Coal Co., 204 F. 2d 579, 582, and in
N. L. R. B. v. Frederica Clausen d/b/a Luzerne Hide d Tallow, 188 F. 2d 439,
443, cert. denied 342 U. S. 868, the Tenth and Third Circuit Courts of Appeals, re-
spectively, rejected fronting contentions where charges were filed by individuals who
were officers of noncomplying unions (the four charging parties in the present case
were not officers, nor were they shown to be principal union protagonists), even
though it was urged in the Coal Creek Coal case, for example, that the charge was
"in reality instigated and conducted" by the noncomplying union of which the charg-
ing individual was an officer.
The Romney, Augusta Chemical, Southern Furniture, Coal Creek Coal, and
Clausen cases are directly applicable here, and I accordingly conclude that the four
charging parties made bona fide applications for employment and, upon thus being
denied, properly filed their charges as individuals asserting their own individual
rights, and not as "fronts" for Lodge 23.21 And I also conclude, upon all the fore-
going, that Respondent Company violated Section 8 (a) (1) and (3) of the Act
by refusing and failing to hire the four charging individuals because they were, not
either members of constituent lodges of District 2 or approved or cleared by Dis-
trict 2, and that by reason of the aforementioned agreement or arrangement Re-
spondent Distict 2 violated Section 8 (b) (1) (A) and (2) by causing Respondent
Company so to discriminate against these named individuals . ( See cases cited in
footnote 18, supra.)
211 also find no merit in the related contention iespecting the manner in which the
charge form was filled in
2136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have found earlier in this report that both party Respondents maintained and
performed an agreement or arrangement requiring membership in, or clearance by,
District 2 as a condition of employment and/or giving employment preference to
members of District 2's constituent lodges. Before even an agreement with valid
union-security provisions may be maintained or performed, it is required by Section
8 (a) (3) of the Act that the labor organization party to such agreement be in com-
pliance with the filing requirements of the Act. I have administratively inquired of
the General Counsel respecting the compliance status of District 2 and its constitu-
ent lodges-which constituent lodges are labor organizations within the meaning of
the Act, and the General Counsel has administratively advised me that as of May 3,
1954, the Board's Second Region (New York, New York) has no record which
shows such compliance at any time by Lodge 21 (headquarters in New York, New
York), Lodge 24 (headquarters in Brooklyn, New York), Lodge 200 (headquar-
ters in Staten Island, New York), and by District 2 (an admitted labor organization
which represented its constituent lodges and executed and administered in their be-
half the contract with Respondent Company). Having found that Respondents have
maintained and performed an agreement or arrangement with union-membership
conditions of employment, I further find that such conduct is also violative of Sec-
tion 8 (a) (1) and (3) by the Company and of Section 8 (b) (1) (A) and (2)
by District 2 because of the failure of District 2 and Lodges 21, 24, and 200 to com-
ply with the filing requirements of Section 9 of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section II, above, occurring in con-
nection with the operations of the Respondent Company described in section I,
above, have a close, intimate, and substantial relation to 'trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
IV. THE REMEDY
The record establishes that Respondent District 2 has had contemporaneous con-
tracts with a great number of construction firms operating within District 2's vast
territorial jurisdiction, and Respondent District 2 itself asserts that those contracts
and the practices thereunder are identical to the contracts and practices in effect at
the Astoria project. It appears necessary to have the broadest type order against
District 2 "since there is every reason to anticipate that if not deterred, respondent
would pursue the same discriminatory policies at every project within its [juris-
dictional] area" (N. L. R. B. v. The Lummus Company, 210 F. 2d 377, 381 (C A.
5). See also McGraw Construction Co., Inc, 107 NLRB 1043, and cases cited
therein) Although not specifically named as party respondents in this case, the
constituent lodges of District 2 are in the same legal, equitable, and administrative
position as District 2 for purposes of this action. District 2 negotiated, executed,
and administered the various contracts for the membership of these particular
lodges, it having no separate membership of its own, and the officers and delegates
to District 2 are elected by these lodges. Accordingly, I consider each of the con-
stituent lodges to be included within the designation of District 2 as a party respond-
ent in this action, and the conclusions of law and recommended order made in this
report as to District 2 apply, as well, to these five constituent lodges. I shall also
recommend an appropriate cease-and-desist order as to Respondent Company.
I shall further recommend that Respondent Company offer employment to the
four charging parties and that both Respondents, jointly and severally, make each
of them whole for any loss of pay suffered by reasons of the discrimination, by
paying a sum of money equal to that which he normally would have earned from
December 4, 1952, in the case of Mrazek, and from January 8, 1953, in the cases
of the three others, until tender of employment, less net earnings during said period.
District 2's back-pay liability shall be tolled, however, 5 days after it serves written
notice on the Company that it does not object to the immediate employment of the
charging parties. Back pay shall be computed in accordance with the formula stated
in F. W Woolworth Company, 90 NLRB 289.
CONCLUSIONS OF LAW
1. The Babcock & Wilcox Company has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) and (3) and Section 2 (6)
and (7) of the Act, by maintaining and performing an unlawful employment agree-
THE PLASTIC MOLDING COMPANY, INC. 2137
ment and/or arrangement and by discriminatorily refusing to hire the four charging
parties.
2. District No. 2, International Brotherhood of Boilermakers, Iron Ship Builders
and Helpers of America, AFL, has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (1) (A) and (2) and Section 2 (6)
and (7) of the Act, by maintaining and performing an unlawful employment agree-
ment and/or arrangement and by causing The Babcock & Wilcox Company to dis-
criminatorily refuse employment to the four charging parties.
[Recommendations omitted from publication.]
THE PLASTIC MOLDING COMPANY, INC. wnd DISTRICT No. 9, INTERNA-
TIONAL ASSOCIATION OF MACHINISTS, AFL. Cage No. 14-CA-1130.
Lecember 27, 1954
Decision and Order
On May 24, 1954, Trial Examiner Reeves R. Hilton issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report.' On October 19, 1954, Trial
Examiner George A. Downing issued a Supplemental Intermediate
Report, also attached hereto, containing additional commerce informa-
tion and findings of fact pertaining thereto!
The Board has reviewed the rulings of the Trial. Examiners made
at the hearings and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Reports, the Respondent's exceptions, and the entire record
in the case, and hereby adopts the Trial Examiner's findings,' con-
clusions, and recommendations with the following modifications.
1 The Respondent's request for oral argument is hereby denied as the record and the
exceptions, in our opinion, adequately present the issues and the positions of the parties.
2 During 1953, the last year for which complete sales figures are available and which
we find to be a year representative of the Respondent's business, the Respondent fur-
nished materials and tools valued at $1.01,720.09 to enterprises each of which shipped out
of the State of Missouri goods valued at more than $50,000. Of the former sum, $2,459.50
represented tooling and setup charges and $99,260.59 represented materials incorporated in
the products of its customers and shipped outside the State. We find that the Respondent
.is engaged in commerce within the meaning of the Act, and that it will effectuate the
policies of the Act to assert jurisdiction. Jonesboro Grain Drying Cooperative, 110
NLRB 481.
3 Trial Examiner Hilton found that the Respondent's general manager, McDorman,
unlawfully interrogated the discriminatee Wojohn by inquiring whether he knew anything
about the Union, or whether he knew of anyone who might have such knowledge. He also
found that Leadman Rieman's statement at an employee meeting that the Respondent did
not want the Union and would try to keep it out was coercive. Although McDorman's
and Rieman's remarks, standing alone, might fall short of coercion, we agree with Trial
Examiner Hilton that in the context of the Respondent's other unlawful actions found
herein these remarks were coercive and constitute violations of Section 8 (a) (1) of the
Act. Cf. Blue Flash Express, Inc., 109 NLRB 591.
110 NLRB No. 262.