Booth and Flinn Co.

National Labor Relations Board - Board Decisions

Apr 22, 1958

120 N.L.R.B. 545 (N.L.R.B. 1958)

BOOTH AND FLINN COMPANY 545
2. By discriminatorily refusing to reemploy Minerva Den Haese , in order to dis-
courage membership and activity in the above-named labor organization , the Re-
spondent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (3) of the Act.
3. By interfering with, restraining , and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not refused to bargain within the meaning of Section
8 (a) (5) of the Act.
[Recommendations omitted from publication.]
Booth and Flinn Company and John J. Testa and Joseph F.
Scarpello
Local Union 825, International Union of Operating Engineers,
AFL-CIO and John J. Testa and Joseph F . Scarpello. Cases Nos.
4-CA-1466 and 4-CB-350. April 0,1958
DECISION AND ORDER
On April 26, 1957, Trial Examiner Louis Plost issued his Interme-
diate Report in the above-entitled proceedings, finding that the Re-
spondents, namely, Booth and Flinn Company, hereinafter called the
Company, and Local Union 825, International Union of Operating
Engineers, AFL-CIO, herein called Local 825, 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. The Trial Examiner also found that the Respondents had not
engaged in certain other unfair labor practices as alleged in the com-
plaint, and recommended that these particular allegations be dis-
missed. Thereafter, the Respondents and the General Counsel filed
exceptions to the Intermediate Report, together with supporting
briefs.
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 Rodgers, Bean, and Jenkins].
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.' The Board has considered the Interme-
1 During the course of the hearing, the General Counsel offered into evidence the con-
stitution of International Union of Operating Engineers , AFL-CIO, hereinafter called the
International , and the bylaws of Local 825, to show, in part , that the Company' s master
mechanic on the New Jersey side of the project was also acting as an agent for Local 825.
The Trial Examiner rejected these exhibits . The General Counsel appealed this ruling to
the Board, and, on March 27, 1957, the day after the hearing closed , the Board reversed
the ruling of the Trial Examiner , without prejudice to the right of the Trial Examiner in
120 NLRB No. 75.
483142-59-vol. 120-36
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
diate Report, the exceptions and briefs filed by the parties, and the
entire record in the case,' and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner only to the extent that
they are consistent with this decision.
The complaint alleged in substance that : (1) The Company and
Local 825, at all times since March 11, 1956, have been parties to an
agreement or contract which provides that the Company shall hire,
within the geographical jurisdiction of Local 825, only those persons
who are members of Local 825, unless Local 825 is unable to furnish
such persons; (2) Local 825, on or about September 7, 1956, caused the
discharge of John J. Testa and Joseph F. Scarpello, hereinafter re-
ferred to as the Charging Parties, because they were not members of
Local 825; and (3) the Company, on or about September 7, 1956, dis-
charged and has since refused to reinstate the Charging Parties for
the reason that they were not members of Local 825; and (4) by the
foregoing conduct the Respondents violated the Act.
1. The Trial Examiner concluded that the Respondent Company
had no contract with Local 825 wherein the Company agreed to hire,
within the geographic jurisdiction of Local 825, only those persons
who are members of Local 825. We disagree with this conclusion of
the Trial Examiner, for the record, in our opinion, considered as a
whole, amply establishes that the Company and Local 825, adopted
a written agreement containing this hiring provision.
In the construction of the Walt Whitman Bridge spanning the
Delaware River between Philadelphia, Pennsylvania, and Gloucester
City, New Jersey, Respondent Company had a contract for the con-
struction of the anchor piers, one on each side of the river, and for the
laying of the concrete flooring on the bridge itself. The Company
began its work at the bridge site in the fall of 1954. To carry out its
contract, the Company needed, on each side of the river, the services of
operating engineers, carpenters, laborers, and cement finishers. Ap-
proximately a month before the job commenced, Roger Franklin, job
superintendent for the Company, following normal company practice
on a new project, contacted James Grace, business agent of Local 825.
Local 825 had jurisdiction, under the International, over the operating
engineers on the New Jersey side of the construction project. Grace
met Franklin at the New Jersey construction site, and together they
discussed the type and number of operating engineers that would be
his Intermediate Report to rule again that the exhibits are not material to the issues in
this proceeding In his Intermediate Report, the Trial Examiner found no reason to
change his original ruling The Board disagrees with the Trial Examiner's ultimate dis-
position of these exhibits, finds that the exhibits are material to the issues of the case,
and hereby accepts them into evidence See Grove Shepherd Wilson & Kruge, Inc, et al,
109 NLRB 209, 215, 216; Millwright Local Union No. 2484, et al. (W. S. Bellows Con-
struction Corporation), 114 NLRB 541, 550.
2 The Respondent Company's request for oral argument before the Board is hereby
denied as the record , exceptions , and briefs adequately present the issues and positions
.of the parties.
BOOTH AND FLINN COMPANY 547
needed, the type of machines to be used, and the wage rates for the
job on the New Jersey side of the project. Thereafter, Franklin had
a similar meeting with the business agent for Local Union 542, 542-A,
and 542-B, International Union of Operating Engineers, AFL-CIO,
the Local having jurisdiction over the operating engineers on the
Pennsylvania side of the job, and the Company entered into a written
contract with Local 542 covering the operating engineers working
on the Pennsylvania side of the project.'
Subsequently, the business agent of Local 825 presented to Franklin
a copy of a contract Local 825 had with Associated General Con-
tractors of New Jersey.4 This contract, in addition to the customary
wage, hour, overtime, and working provisions, contained the following
provision :
In connection with the work to be performed under this Agree-
ment, the Employer agrees to hire employees who are members
of the Union and the Union agrees to furnish capable and com-
petent employees. In the event that the Union, when so requested,
is unable to furnish such employees, then the Employer reserves
the right to hire employees irrespective of Union status, but such
employees, within thirty (30) days of date of hiring, must secure
Union membership.
The General Counsel contends that the Company adopted the above
contract containing this illegal closed-shop provision, and together
with Local 825 maintained and gave effect to it. With respect to this
contention, we note that the Company's job superintendent, Franklin,
testified that he discussed with Local 825's business agent the number
of employees who would be required on the job, their qualifications,
and their wage rates. Franklin also stated that, subsequently, he re-
ceived a contract from Local 825's business agent, and admits that the
contract was placed in its New Jersey construction office, and use was
made of it. Moreover, field office manager McCaffrey, who was in
charge of the clerical personnel as well as the Company field offices
located at the Pennsylvania and the New Jersey construction sites,
.testified that the agreement was used to ascertain wage rates, over-
time, holidays, and anything that would affect the pay schedule.
Although the Company contends that it used this contract only
for purposes of determining the wages of its employees, the only
reasonable inference to be drawn from the facts herein presented, is
8 We are not herein concerned with the legality of the contract between the Company
and Local 542, the complaint not having alleged that such contract violated the Act
s We note that the agreement introduced by the General Counsel was effective from
August 15, 1955, to June 30, 1957, and was to continue automatically from year to year
thereafter unless either party served notice 60 days prior to the expiration date. While it
is not entirely clear that this is the original agreement first submitted by Grace to Franklin,
the Company admits that it referred to the agreement set forth in the record, during the
period we ate now concerned with, in connection with the employment of its operating
engineers on the New Jersey construction site.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Company bound itself to more than the contract's wage
scale. Moreover, all actions of the Company and Local 825 are con-
sistent with a contractual relationship. Thus, as discussed infra,
the Company consulted with Local 825 before doing anything as
far as operating engineer personnel was concerned or before changing
their work location. Its master mechanic, as is set forth in detail
hereinafter, was a member in good standing of the local union as
was called for in the agreement. Local 825's business agent was per-
mitted to, and did, visit the job site several times. Moreover, in ac-
cordance with the agreement, the Company also made the required
payments to Local 825 for its welfare fund. Finally, we note that
the Company admitted that it operated under this written agreement
with Local 825. Thus, in response to a letter from an investigating
field examiner of the Board requesting any existing written collec-
tive-bargaining agreements between the Company and Local 825 and
Local 542, the Company submitted, in addition to its written agree-
ment with Local 542, a copy of the contract between Local 825 and
the Associated General Contractors of New Jersey. In transmitting
these contracts to the Board, the Company's field office manager, Mc-
Caffrey, the person principally responsible for utilizing these con-
tracts in connection with the Company's payroll, stated that both of
the foregoing agreements "are those under which we now operate."
In view of the foregoing, and on the basis of the entire record, we
find, as contended by the General Counsel, that the Respondents, by
agreement, adopted the written contract between Local 825 and the
Associated General Contractors of New Jersey, and that this Re-
spondent Company is conducting its operations in accordance with
this contract. As the Respondents are maintaining and giving effect
to the illegal closed-shop hiring provision contained therein which
requires that the Company hire only those persons who are members
of Local 825, unless Local 825 is unable to furnish such persons, we
find that the Company and Local 825 violated, and are violating Sec-
tion 8 (a) (3) and (1) and 8 (b) (2) and 8 (b) (1) (A) of the
Act, respectively.'
2. The General Counsel contends, in effect, that apart from the
written agreement considered above, the Respondent Company other-
wise violated the Act by delegating its hiring to a master mechanic
who was at the same time an agent of Respondent Local 825, and who
was bound to employ only union members; and that by such delega-
tion the Respondents in effect agreed to operate under an unlawful
closed-shop arrangement. The Trial Examiner did not consider this
matter in his Intermediate Report.
5Bickjord Shoes, Inc, 109 NLRB 1346; Consolidated TVeste,n Steel Corporation, et al.,
108 NLRB 1041, 1043, 1062; Ebasco Se> vices, Incorporated, 107 NLRB 617; Red Star
Express Lines of 4ubuin, Inc. v. N L. R. B, 196 F. 2d 78 (C. A, 2) , Grove Shepherd
Wilson & Kruge, Inc, et al., sup1a.
BOOTH AND FLINN COMPANY 549
We have heretofore found that Respondent Local 825's business
agent presented to Respondent Company's job superintendent a writ-
ten agreement between Local 825 and Associated General Contractors
of New Jersey, for the Company's use on the New Jersey construction
site. We have also found that the Respondents adopted and gave
effect to this contract, including an illegal closed-shop hiring provision
contained therein. In addition to the latter hiring provision, the
contract contained the following provision :
It is further understood and agreed that, where there are five
(5) or more members to be employed upon a job by any one,
Contractor, a Master Mechanic or Foreman Engineer shall be
employed; the said Master Mechanic or Foreman Engineer shall
be a member in good standing in Local Union 825 of the
International Union of Operating Engineers.
In accordance with this proviso, Behrend, the second master mechanic
to be employed on the New Jersey job site, was recruited through
Local 825, and was a member of Local 825.
Behrend supervised operating engineers on the New Jersey job
site, except when they were raising forms under the direction of the
carpenter foremen. In addition, Behrend, like his predecessor,
Grace,6 was responsible for equipment, supervised repairs, made out
timecards for the operating engineers and oilers, placed equipment
properly, and selected' and laid off crews at Franklin's request. It
is thus clear from the record that Behrend, the Company's master
mechanic on the New Jersey construction site, supervised all operat-
ing engineers working at that location. Moreover, he was the per-
son through whom the Company hired its operating engineers, and
the record establishes therefore that for hiring purposes the master
mechanic served as the Company's agent.
The constitution of the International and the bylaws of Local 825
spell out in detail the duties and responsibilities of members of Local
825, and, in this instance, the duties of master mechanic Behrend.
The bylaws provide in pertinent part :
.. . its [Local 825's] members are subject to the provisions of
the Constitution of the International. . . . No applicant having
been accepted by the Local Union shall be allowed to work upon
9 During the course of the construction project the Company employed two different
master mechanics on the New Jersey side of the project Tom Grace was the first master
mechanic to be employed. Henry Behrend , who apparently replaced Grace, was employed
on August 27, 1956. Although the record does not clearly spell out whether or not Grace
was a member of Local 825 , no assertion is made that Grace did not enforce the hiring
provisions of the International 's constitution and Local 825's bylaws , which are set forth
in the text below.
"Although the Company contends that its master mechanics , in routine fashion, merely
carried out the job superintendent 's orders in the hiring and discharging of operating
engineers, the record shows that the selection of the personnel for hire was left entirely
in the hands of the master mechanics.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the jurisdiction of Local Union 825 and 825-A until his full
initiation fee and all other taxes, assessments and fees have been
paid . . . where five or more engineers are employed by the one
employer, there must be a Master Mechanic employed; said Mas-
ter Mechanic must be a member in good standing in the Inter-
national Union of Operating Engineers in the territory covered
by these By-laws.... The Master Mechanic shall do the hiring
and discharging of all Engineers, Maintenance Engineers,
Firemen and Junior Engineers.
Local 825's bylaws also list a series of "discreditable" acts on the part
of its members, including :
... Failing to determine whether or not others on a job, doing
work within the jurisdiction of the International Union, are
members in good standing.... Failing to report employment
on a job of persons not in good standing....
The constitution of the International contains, among other things,
the following pertinent provisions :
Members of Local Unions shall conform to and abide by the
Constitution, Laws, Rules, Obligation and Ritual, and the
decisions, rulings, orders, and directions of any authority of the
International Union empowered by this Constitution to make
them. . . Each member shall hire none but those in good
standing with a Union having jurisdiction over the work to be
done. . . . No member shall be in good standing unless he shall
have affixed to his dues book stamps showing payment for all
current dues and receipts for other indebtedness to his Local
Union.... All fines or assessments legally levied or imposed
shall be charged by the Financial Secretary against the member
from whom due and must be paid by the member involved to the
Financial Secretary within thirty (30) days and before any
dues owing by him to the Local Union can be received or accepted
by the said Local Union.... No by-laws or trade rules may
be adopted in contravention of the Constitution, laws, rules,
obligation or ritual of the International Union... .
On these facts, therefore, it is evident that master mechanic Beh-
rend, whose employment was required by the terms of the contract
adopted by Respondents, served in a dual capacity. Behrend was,
in the first place, Respondent Company's hiring agent. He was also,
because of the obligations placed on him by the terms of Inter-
national's constitution and Local 825's bylaws, Respondent Local
825's agent in the enforcement of both its, and the International's,
restrictive hiring provisions.' And those restrictive provisions
8 Grove Shepherd Wilson & %roge, Inc., et al., 109 NLRB 209, 215, 216.
BOOTH AND FLINN COMPANY 551
limited Behrend to hiring only those members in good standing of
the Union having jurisdiction of the work to be done-which, in
this instance was Local 825.
Accordingly, in view of the foregoing, and on basis of the entire
record, we find and conclude that Respondent Company violated Sec-
tions 8 (a) (1) and (3) of the Act by unlawfully delegating its hiring
authority to an agent, master mechanic Behrend, who was obligated to
employ only members in good standing of Respondent Local 825. We
further find and conclude that when Respondent Company entrusted
its hiring to the master mechanic, who was also Respondent Local 825's
agent and who was bound by its bylaws and the International's con-
stitution, the Respondents in effect agreed to operate under an illegal
closed-shop hiring arrangement; and that Respondent Company there-
by violated Section 8 (a) (1) and (3) of the Act, and Respondent Local
825 thereby violated Section 8 (b) (1) (A) and 8 (b) (2) of the Act.'
3. The Trial Examiner found that on or about September 7,1956, the
Company discharged and refused to reinstate John J. Testa and Joseph
F. Scarpello because they were not members of Local 825. He also.
found that Local 825 caused the discharges of these employees by re-
fusing to permit the Company to transfer them from its Philadelphia
construction site to its New Jersey construction site, because they were
not members of Local 825. Contrary to the Respondents' exceptions,
and for the reasons set forth below, we agree with the Trial Examiner's,
conclusions.
Testa and Scarpello were hired early in March 1956, for work on the
Pennsylvania side of the Walt Whitman Bridge project. Testa was
hired as an operator of a truck crane and Scarpello was hired as an
oiler.10 Except for a day or two Testa and Scarpello worked together
throughout the entire period of their employment as a team. During
the course of their employment together, they operated a 20-ton,
25-ton, and a 35-ton crane, and Testa, alone, also operated a 60-ton
crane for 1 day.
Early in August, while Testa was working with the 20-ton crane,
Superintendent Franklin asked Testa if he was willing to go to work
on the New Jersey side. When Testa stated that he was agreeable,
Franklin, according to Testa, said that "there was a lot of work to be
done over there with that rig, and he wanted me [Testa] over there
on it." Franklin thereafter indicated that he would talk to "the boys"
on the New Jersey side about Testa's employment on that side of the
river. About the same time, Franklin also spoke to Scarpello and
9 See Mountain Pacific Chapter of the Associated General Contractors, Inc., et al., 119,
NLRB 883.
19
Testa is a member of Local 542 and Scarpello is a member of Local 542-A, the
collective-bargaining agent for the employees on the Pennsylvania job site . The contract,
described above in the text , which was adopted by the Respondent , specifically covered the
terms and conditions of employment of oilers.
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told him that the crane was being transferred to New Jersey shortly,
and said , according to Scarpello , that "I [Franklin ] want you two
boys [Testa and Scarpello ] on there when it goes to Jersey ." Subse-
quently, Franklin again spoke to both Testa and Scarpello concern-
ing their employment on the New Jersey construction site, and, ac-
cording to Scarpello , again stated that "there was a lot of work for
us over in Jersey, and he wanted us on the machine." At that time
he also added , "I think I can fix it up because them fellows over there
were pretty decent with me."
About this time, according to Franklin , Franklin told Behrend, the
New Jersey master mechanic, that he would like to bring over the
Charging Parties from the Pennsylvania side of the bridge to work
on the New Jersey construction site and asked Behrend what he
thought about the transfer . Behrend indicated that he couldn't an-
swer at that time, but would check with his local ( 825) and see if it
were possible to bring the men over the bridge to New Jersey, and he
would let Franklin know in a few days . Sometime later , Franklin
asked Behrend what he had found out from Local 825 about the pros-
pective transfers . Behrend again replied that he would check with
the Local, but added, "I [Behrend ] didn't think so because there were
an awful lot of men out of work in New Jersey." According to
Franklin , Behrend also stated at this time that there were qualified
New Jersey employees who could operate the crane and who were out
of work, and that he would rather that Franklin did not bring Testa
and Scarpello over to the New Jersey job site.
On the morning of September 7, 1956, Emrick , the master mechanic
on the Philadelphia side, instructed Testa and Scarpello to drive the
20-ton crane over the bridge to the New Jersey side. They did as in-
structed , and when they returned , the carpenter foreman , Duncan,
told them to get the 35-ton crane in operation as they were going to do
some work with it, and that in the afternoon this crane would also be
taken to the New Jersey side. Thereupon , Scarpello asked Duncan
what was going to happen to them ( Scarpello and Testa ) and if they
were going to get paid off. Duncan replied, "No , it is all arranged
that you fellows are going to go to Jersey and work. " Duncan also
told Scarpello that in the future, when they were working in New
Jersey, it would be advisable for them to drive up to the anchorage
with their cars and walk across the bridge, rather than waiting for
the boat. Scarpello and Testa operated the 35-ton crane for the re-
mainder of the morning.
That afternoon , Testa and Scarpello drove the 35-ton crane across
the bridge to New Jersey . They were accompanied by Master Me-
chanic Emrick . As the three men were walking back across the bridge
from the New Jersey side , Emrick said , "What do you think of them
guys . . . I sent word for them over there to meet me and they
BOOTH AND FLINN COMPANY 553:
wouldn't show up." Emrick also stated that he had sent word for
Behrend, the master mechanic, to meet them (Emrick, Testa, and
Scarpello) at 12: 30 p. in. but that Behrend did not show up. Emrick
then said that it was a "hell-of-a-thing to change plans at the last
minute," but "that looks like it." A short time later Emrick told Testa
and Scarpello that they were being laid off. When they heard this,.
both Testa and Scarpello went to the Company's office and asked the
project engineer, Prenties,ll if it was true that they were laid off.
Prenties informed them that they were laid off, but that they were
not being laid off because of their work; that the Company was satis-
fied with their work; that the job superintendent wanted them to
work in New Jersey; that it was not the Company's idea, but that
"it was Grace's [Local 825's business agent] idea"; and that "they
just wouldn't let you work."
The foregoing conduct must be considered in the framework of the
hiring arrangement then in existence between the parties. As found
above, the parties had adopted the terms of a contract between Re-
spondent Local 825 and Associated General Contractors of New Jer-
sey. By their understanding, the Company and Local 825, through
the dual agency of Master Mechanic Behrend, were operating under
an illegal closed-shop hiring arrangement, by the terms of which only
members of Local 825 could be hired on the New Jersey side of the
river. It is thus apparent that although Respondent Company desired
to transfer Testa and Scarpell o, had in fact offered them employment
in New Jersey, and had notified them, through its carpenter foreman,
that they would be transferred to New Jersey, it was because of its
unlawful understanding with Respondent Local 825 that the Com-
pany, instead, discharged them when master mechanic Emrick failed
to clear their transfers with master mechanic Behrend.12 By the same
token, it appears that Behrend, who, as found above, was Respondent
Local 825's agent in the implementation of the restrictive hiring pro-
visions in Local 825's bylaws and in the International's Constitution,
was acting under the understanding between Respondents when he
failed to clear the transfers of Testa and Scarpello. On this record it
is also apparent, and we so find, that Behrend refused to authorize the
"Prenties was responsible for the work of four civil engineers, and also for the final
results of various parts of the job . From time to time Prenties also directed the crane
operators in the setting of the cranes for the pouring of concrete . The crane operators
considered him as job superintendent Fianklin 's assistant
lB The Company contends , inter aha, that the Charging Parties were to operate the
20-ton crane in New Jersey , but that the 20-ton crane was not placed in operation for
3 weeks after the Charging Parties were discharged , and that they were really discharged
for lack of work. We find no merit in this contention. We note that both Testa and
Scarpello also regularly operated the 35 -ton crane on the Philadelphia side, and indeed
were operating the 35-ton crane up until their discharge on Friday , September 7. On the
following Monday morning , the Company commenced operating the 35-ton crane on the
New Jersey side. Moreover , according to the credited testimony of Scarpello, Superin-
tendent Franklin told the Charging Parties that "there was a lot of work for us over
in Jersey . . "
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transfer of Testa and Scarpello because they were not members of
Respondent Local 825.
Accordingly, we find as alleged in the complaint, that the Com-
pany violated Section 8 (a) (3) and (8) (a) (1) of the Act by dis-
charging and refusing Testa and Scarpello further employment in
New Jersey because they were not members of Local 825,13 and that
Local 825 violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act by
causing the Company to discharge and refuse to employ Testa and
Scarpello in New Jersey because they were not members of Local 825.
THE REMEDY
Unlike the Trial Examiner, we have found that the Respondents, by
agreement, maintained and gave effect to an illegal closed-shop hiring
provision set forth in a collective-bargaining contract between Re-
spondent Local 825 and Associated General Contractors of New
Jersey, and that the Respondents thereby violated the Act. We have
also found that Respondent Company violated the Act by unlawfully
delegating its hiring authority to its master mechanic who is obligated
to employ only members in good standing of Respondent Local 825.
We have further found that when Respondent Company entrusted
its hiring to its master mechanic, who was also Respondent Local
825's agent and who was bound by its bylaws and the International's
constitution, the Respondents in effect agreed to operate under an
illegal closed-shop hiring arrangement, and that the Respondents
thereby violated the Act.
We shall therefore order the Respondents to cease and desist from
maintaining and giving effect to the illegal closed-shop hiring pro-
vision set forth in the collective-bargaining contract between Re-
spondent Local 825 and Associated General Contractors of New
Jersey; to cease and desist from maintaining and giving effect to their
illegal closed-shop hiring arrangement, described above; and to cease
and desist from otherwise interfering with, restraining, or coercing the
employees in the exercise of their rights guaranteed in Section 7 of
the Act. We shall also order Respondent Company to cease and
desist from unlawfully delegating its hiring authority to a master
mechanic who is obligated to employ only members in good standing
of Respondent Local 825.
13 Paragraph 9 of the complaint, apparently through an inadvertent error, does not state
that the Respondent Company, by discharging and refusing to reinstate Testa and Scarpello
for the reason that they were not members of Respondent Local 825, violated Sec-
tion 8 (a) (3) of the Act. However, it is clear that the discharge of Testa and Scarpello
was set forth in the complaint as a violation of the Act, and the Respondent Company
did submit evidence to refute this charge. Moreover, the Trial Examiner found that the
discharges in question were violative of Section 8 (a) (3), and the Respondent Company's
exceptions do not advert to any inadequacies of the complaint in this regard. Accordingly,
we find immaterial any variance between the allegations of the complaint and our finding
in this connection N L. R. B. v. Albert Armato et al., 199 F. 2d 800 (C. A. 7).
BOOTH AND FLINN COMPANY 555
The record discloses that the Respondent Company has completed
its work at the Walt Whitman Bridge and has removed its equip-
ment. In these circumstances, like the Trial Examiner, we shall not
direct the Respondent Company to reemploy the Charging Parties on
the Walt Whitman Bridge project. However, unlike the Trial
Examiner, in the circumstances of this case, we find it unnecessary to
provide for the publishing of a notice in newspapers.
Apart from these exceptions, we shall otherwise adopt the Remedy
set forth in the Intermediate Report.
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, Booth and Flinn Company, its officers, agents,
successors, and assigns, shall :
(a) Cease and desist from:
(1) Maintaining or giving effect to, at any of its projects within
the jurisdiction of Local Union 825, International Union of Operating
Engineers, AFL-CIO, the illegal closed-shop hiring provisions set
forth in the collective-bargaining contract between Respondent Local
825, and Associated General Contractors of New Jersey which the
Company and Local 825 have adopted, and maintaining and giving
effect to its illegal closed,-shop hiring arrangement with Local 825, or
entering into or enforcing any extensions, renewals, modifications, or
supplements thereof, or any superseding agreements or arrangements
with the said labor organization, containing union-security provisions,
except as authorized by the proviso to Section 8 (a) (3) of the Act.
(2) Unlawfully delegating its hiring authority to a master
mechanic, or to any other person, who is obligated to employ only
members of Respondent Local 825, or any other union.
(3) Encouraging membership in Local Union 825, International
Union of Operating Engineers, AFL-CIO, by granting preference in
hiring to its members or by discriminating in any other manner in
respect to the hire and tenure of employment, or any term or condi-
tion of employment, except as permitted by Section 8 (a) (3) of the
Act.
(4) In any other mariner, interfering with, restraining, or coercing
its employees in the exercise of their rights under Section 7 of the
Act; except as 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) Jointly and severally with Respondent Local Union 825, In-
ternational Union of Operating Engineers, AFL-CIO, make whole
John J. Testa and Joseph F. Scarpello in the manner set forth in
"The Remedy" section of the Intermediate Report.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) Preserve and make available to the Board or its agents for
examination or copying all payroll records, social security payment
records, timecards, personnel records and reports, and all other
records necessary or useful to analyze the amount of back pay due
and the rights of employment under the terms of the Order.
(3) Post at its office in Pittsburgh, Pennsylvania, and at all
projects now being operated by it within the jurisdiction of Local
Union 825, International Union of Operating Engineers, AFL CIO,
at which operating engineers are employed, copies of the notice at-
tached hereto marked "Appendix A." 14 Copies of said notice, to
be furnished by the Regional Director for the Fourth Region, shall,
after being duly signed by the Respondent Company's representa-
tive, be posted by it immediately upon the receipt thereof, and con-
spicuously maintained by it for sixty (60) consecutive days there-
after in all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent Company to insure
that said notices are not altered, defaced, or covered by other ma-
terial.
(4) Notify the Regional Director for the Fourth Region in writing,
within ten (10) clays from the date of this Order, what steps the
Respondent Company has taken to comply herewith.
II. The Respondent, Local Union 825, International Union of
Operating Engineers, AFL-CIO, its officers, representatives, agents,
successors, and assigns, shall
(a) Cease and desist from :
(1) Maintaining or giving effect, in its dealings with Respondent
Booth and Flinn Company, to the illegal closed-shop hiring provi-
sions set forth in the collective-bargaining contract between it and
Associated General Contractors of New Jersey, which it and the said
Booth and Flinn Company have adopted, or maintaining or giving
effect to such illegal hiring provisions with any other employer,15 and
maintaining and giving effect to its current illegal hiring arrange-
ment with Respondent Booth and Flinn Company, or with any other
employer, or entering into or enforcing any extensions, renewals,
modifications, or supplements thereof, or any superseding agree-
ments or arrangements with Respondent Booth and Flinn Company,
or with any other employer, containing union-security provisions,
except as authorized by the proviso to Section 8 (a) (3) of the Act.
(2) Causing or attempting to cause Booth and Flinn Company,
its officers, agents, successors, or assigns, to discriminate against em-
14 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 "
"The restrictions placed on Respondent Local 825 are not intended to apply to any
employer over whom the Board will not assert jurisdiction . Daugherty Coonpany, Ine,
112 NLRB 986.
BOOTH AND FLINN COMPANY 557
ployees or prospective employees in violation of Section 8 (a) (3)
of the Act.
(3) In any other manner restraining or coercing employees of
Booth and Flinn Company, its successors or assigns, or employees
of any other employer, in the exercise of the rights guaranteed in
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement 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) Jointly and severally with Respondent Booth and Flinn Com-
pany, make whole John J. Testa and Joseph F. Scarpello for any
loss of earnings suffered by reason of the discrimination against them
in the manner set forth in "The Remedy" section of the Intermediate
Report.
(2) Post at all its business offices copies of the notice attached
hereto marked "Appendix B." 16 Copies of such notice, to be fur-
nished by the Regional Director for the Fourth Region, shall, after
being signed by a representative of said Union, be posted by it im-
mnediately upon receipt thereof, and maintained by it for sixty (60)
consecutive days thereafter in conspicuous places, including all places
where notices to members are customarily posted. Reasonable steps
shall be taken to insure that such notices are not altered, defaced, or
covered by other material.
(3) Notify the Regional Director for the Fourth Region in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
19 See footnote 14, supra.
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 maintain or give effect to the illegal closed-shop
hiring provisions set forth in the collective-bargaining contract
between Respondent Local 825 and Associated General Contrac-
tors of New Jersey which we have adopted, and we will not main-
tain or give effect to our illegal closed-shop hiring arrangement
with Local Union 825, International Union of Operating Engi-
neers, AFL-CIO, or to any extensions, renewals, modifications, or
supplements thereof, or to any superseding agreements or
arrangements or practices granting preference in hiring to mem-
bers of the above-named Union, except to the extent permitted by
Section 8 (a) (3) of the Act.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT unlawfully delegate our hiring authority to a mas-
ter mechanic, or to any other person, who is obligated to employ
only members of Local Union 825, or of any other Union.
WE WILL NOT encourage membership in Local Union 825, Inter-
national Union of Operating Engineers, AFL-CIO, or any other
labor organization, by discriminating in the aforesaid, or in any
other manner, with respect to the hire and tenure of employment,
or any term or condition of employment in violation of Section 8
(a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights under Section
7 of the Act.
WE WILL jointly and severally with Local Union 825, Interna-
tional Union of Operating Engineers, AFL-CIO, make John J.
Testa and Joseph F. Scarpello whole for any loss of earnings suf-
fered by reason of the discrimination against them.
All our employees are free to become, remain, or to refrain from be-
coming or remaining members of the above-named 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.
BOOTH AND FLINN COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (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
D
NOTICE TO ALL OFFICERS, REPRESENTATIVES, AGENTS, AND MEMBERS
OF LOCAL UNION 825, INTERNATIONAL UNION OF OPERATING ENGI-
NEERS, AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor Re-
lations Act, as amended, we hereby notify you that :
WE WILL NOT in our dealing with Booth and Flinn Company,
or in our dealings with any other employer, maintain or give effect
to the illegal closed-shop hiring provisions set forth in our collec-
tive-bargaining contract with Associated General Contractors of
New Jersey which our union and Booth and Flinn Company have
adopted, and we will not maintain or give effect to our illegal
closed-shop hiring arrangement with Booth and Flinn Company,
or to any extensions, renewals, modifications, or supplements
thereof, or to any superseding agreements or arrangements or
BOOTH AND FLINN COMPANY 559
practices granting preference in hiring to our members , except to
the extent permitted by Section 8 (a) (3) of the Act.
WE WILL NOT cause or attempt to cause the above -named Em-
ployer, its officers, agents , successors , or assigns , or any other
employer, to discriminate against its employees in the aforesaid
manner or in any other manner with respect to their hire or tenure
of employment , or any term or condition of employment , in viola-
tion of Section 8 (a) (3) of the Act.
WE WILL NOT restrain or coerce employees of the above-named
Employer in the exercise of rights under Section 7 of the Act.
WE WILL jointly and severally with Booth and Flinn Company
make whole John J. Testa and Joseph F. Scarpello for any loss
of earnings suffered by reason of the discrimination against them.
LOCAL UNION 825, INTERNATIONAL UNION
OF OPERATING ENGINEERS , AFL-CIO,
Labor Organization.
Dated------ ---------- By-------------------------------------
(Representative ) ( 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
Upon a charge duly filed in the Fourth Regional Office of the National Labor
Relations Board, Philadelphia, Pennsylvania, on September 10, 1956, by John J.
Testa and Joseph F. Scarpello, Individuals, alleging that Booth and Flinn, herein
called Respondent-Employer, had engaged in and was engaging in conduct violative
of the National Labor Relations Act, as amended (61 Stat. 136, 29 U. S. C. Sec-
tion 141, et seq.), herein called the Act, more particularly Section 8 (a) (1) and
(3) thereof and upon a charge filed the same day by Testa and Scarpello alleging
that Local Union 825, International Union of Operating Engineers, AFL-CIO,
herein called Local 825, had engaged in and was engaging in conduct violative of
Section 8 (b) (1) (A) and Section 8 (b) (2) of the Act, the Regional Director for
the Fourth Region of the National Labor Relations Board, herein called the Board,
issued a consolidated complaint, dated February 11, 1957, against said Respondent-
Employer and Local 825 alleging that the Respondent-Employer had engaged in
and was engaging in unfair labor practices within the meaning of the Act.
Copies of the complaint, the charges, the order consolidating the cases, and a
notice of hearing were duly served upon the Respondent-Employer and Local 825.
Answers were duly filed by the Respondent Employer and Local 825 denying that
the Respondents had engaged in any unfair labor practices as alleged.'
1 The relevant provisions of the Act on which the complaint is based are.
SEC. 8. (a) It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7;
(3) by discrimination in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage membership in any labor
organization . .
(b) It shall be an unfair labor practice for a labor organization or its agents-
(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed
in section 7 . .
(2) to cause or attempt to cause an employer to discriminate against an employee
in violation of subsection (a) (3) or to discriminate against an employee with respect
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the unfair labor practices the complaint alleged:
On or about September 7, 1956, the Respondent-Employer discharged John
J. Testa and Joseph F. Scarpello.
At all times since on or about September 7, 1956, the Respondent-Employer
has refused to reinstate John J. Testa and Joseph F. Scarpello to their former
or substantially equivalent jobs.
The Respondent-Employer discharged and refused to reinstate the em-
ployees mentioned in paragraphs 5 (a) and 5 (b) for the reason that they
were not members of the Respondent-Union.
On or about September 7, 1956, the Respondent-Union [Local 825] caused
the discharge of John J. Testa and Joseph F. Scarpello.
On or about September 7, 1956, the Respondent-Union [Local 825] caused
the discharge of John J. Testa and Joseph F. Scarpello because they were not
members of Respondent-Union.
The above specific alleged violations according to the complaint are premised upon
the allegation that:
At all times since March 11, 1956, Respondent-Union and Respondent-Em-
ployer have been parties to an agreement or contract which provides for
Respondent-Employer, within the geographical jurisdiction of Respondent-
Union, to hire only those persons who are members of Respondent-Union,
unless the Respondent-Union is unable to furnish such persons.
The conduct above set out is alleged to constitute violation of Section 8 (a) (1)
,and (3) of the Act on the part of the Respondent-Employer and violative of Sec-
tion 8 (b) (1) (A) and (2) by Local 825.
Pursuant to notice a hearing was held before Louis Plost, the duly designated Trial
Examiner, at Philadelphia, Pennsylvania, on March 25 and 26, 1957. The parties
-were represented by counsel, herein referred to in the names of their principals. All
the parties participated in the hearing and were afforded full opportunity to be heard,
-to examine and cross-examine witnesses, to introduce evidence bearing upon the
issues, to argue orally and to file briefs and/or proposed findings of fact and con-
clusions of law, with the Trial Examiner. The parties did not argue orally. A
date was set for the filing of briefs. The Trial Examiner granted an unopposed
motion by the General Counsel to conform the pleadings to the proof with respect
to misspellings, dates, and like matters not substantive, and denied motions by the
Respondents to dismiss the complaint. The Trial Examiner denied an offer by the
General Counsel to receive a certain document as an exhibit. This will be fully
discussed at a later point herein Briefs have been received from all the parties.
Upon the entire record, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
There is no dispute as to the following:
Booth and Flinn Company is a corporation, maintaining its principal office in
-Pittsburgh, Pennsylvania. It is engaged in general contracting and heavy construc-
tion in various States of the United States. Annually, it performs services in States
other than the Commonwealth of Pennsylvania with a value in excess of $100,000.
Among Respondent-Employer's construction activities within the past 12 months
is a situs at Gloucester City, New Jersey, and Philadelphia, whereat Respondent-
Employer has been engaged in the construction of a bridge between the two cities
heretofore mentioned The value of the contract of Respondent-Employer is in
excess of $6,000,000.
II THE RESPONDENT LABOR ORGANIZATION INVOLVED
Local 825 (Respondent-Union) is a labor organization within the meaning of
Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
In the construction of the Walt Whitman Bridge spanning the Delaware River
between Philadelphia, Pennsylvania, and Gloucester City, New Jersey, Booth and
to whom membership in such organization has been denied or terminated on some
ground other than his failure to tender the periodic dues and the initiation fees
uniformly required as a condition of acquiring or retaining membership ; .. .
BOOTH AND FLINN COMPANY 561
Flinn Company (the Respondent-Employer) constructed the anchor piers on both
sides of the river and laid the concrete flooring for the bridge.
The record is clear contrary to the allegation of the complaint, that the Respond-
ent-Employer had no written contract with Local 825 (the Respondent Local 825)
International Union of Operating Engineers, AFL-CIO. The Respondent-Em-
ployer was under written contract with Local 542 and 542 A of the same Interna-
tional Union. Apparently Local 825 had jurisdiction, under the International
Union over employees on the New Jersey side while Local 542 held jurisdiction on
the Pennsylvania side of the project.
Roger Franklin, the Respondent-Employer's job superintendent during its work on
the bridge, testified that "approximately one month before the job started" in the fall
of 1954, he (Franklin) sought an interview with one James Grace,2 the business
agent for Local 825 on the New Jersey side. Franklin testified:
Q. Tell us about whatever conversations you had, and with whom you had, on
the Jersey side, for example.-A. Well, I went-James Grace on the Jersey side,
he was the business agent at that time.
Q. Of what Union?-A. 825.
* * * * * *
Q. Tell us of the conversation.-A. Well, I called Mr. Grace and asked him
to meet me at the job site to discuss how many men I would need and the type
of men for the different pieces of equipment I had.
Franklin testified that at a second meeting with Grace, the latter gave him a copy
of the agreement in effect between Local 825 and various employers in the area.
This document recited the Union's wage scale. The document was placed in the field
office maintained on the job by the Respondent-Employer.
According to Franklin the sole use made of the document left with him by Grace
was for reference as to union wage rates and working conditions to which the
Respondent-Employer adhered.
John A. McCaffrey testified that: he had been manager of the Respondent-
Employer's field office on the Walt Whitman Bridge job; although he was located on
the Philadelphia side of the river, he not only had complete charge of the New Jersey
side office work also but on occasion assisted in its work; and he prepared the payroll
for Philadelphia and was responsible for the New Jersey payroll.
McCaffrey testified that the pay scale for operating engineers was determined by
the contracts in effect between the Operating Engineers Union and various employers
in the area but that the same rates were not in effect on both sides of the river. He
testified:
Q. Was the agreement you used the same for both sides of the bridge? For
both the Philadelphia side and the Jersey side?-A. No, I wouldn't say they
were the same. One was set up by the Philadelphia Local, and one was set up
by the Jersey Local.
McCaffrey further testified that copies of the contracts he used to determine the pay
scale were in the office when he arrived, and were used for no purpose other than
to determine the pay rate for operating engineers and that in answer to a request of
the Regional Office during the field investigation he forwarded copies of the contract
forms he had used to the Board.
The covering letter reads inter alia:
We are enclosing herewith one copy of the Working Agreement, and Rules of
the Operating Engineers Locals #542, 542-A, 542-B, Philadelphia, Pa., and
#825, 825-A and 825-B, New Jersey.
The above agreements and Rules are those under which we now operate. . . .
Job Superintendent Franklin testified, that under his supervision a master me-
chanic, who had certain duties with respect to operating engineers, was employed
on each side of the river. The work and authority of the master mechanics on both
sides are identical. Franklin testified:
Q. With respect to the men who are operating engineers, what were his duties
with respect to them?-A. Well, he made a timecard out each day, turned their
time in on the operators, and oilers.
Q. Did he direct them in their work?
2 Grace is now deceased.
483142-59-vol 120-37
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Well, usually in the mornings , they would come to me to find out where
I wanted to place the cranes and stuff, and I would give those orders to the
master mechanic , and he would take them from there.
Franklin further testified that "when I wanted men, I would tell him [the master
mechanic] in the evening or a couple of days before time, when I expected a crane
in, and he would get men for me." He testified that the master mechanic "would get
them through the [ Union] business agent"; that he was not specifically instructed to
obtain men only from this source, but "it was left up to him to get men." Franklin
testified:
Q. . . . did you tell him where to go and get these men? Did you tell him
to go and get them from the Union?
A. No.
He testified the master mechanics had no authority either to hire, discharge, or lay
off employees on their own initiative ; this could only be done on instructions from
Franklin.
Franklin further testified that John J. Testa and Joseph F. Scarpello were hired
as operator and oiler for a 20-ton crane and were to work on the anchor pier on the
Philadelphia side of the river ; that during their employment with the Respondent-
Employer, Testa and Scarpello also operated cranes other than the 20 -ton crane,
and worked together as a team.
The record is clear that Testa and Scarpello were members of Local 542, and 542A
respectively and were at no time during their employment with the Respondent-
Employer members of Local 825.
The Respondent-Employer stated on the record that no question of lack of com-
petence entered into the final termination of the two men which according to the
Respondent-Employer was made because of lack of work for them.
Joseph F. Scarpello testified that: he was first employed by the Respondent
Employer in March 1956 ; he worked as the oiler on cranes operated by John J.
Testa on the Philadelphia side of the river until September 7, 1956, when he was
discharged ; and about 3 weeks before he was terminated Job Superintendent Frank-
lin mentioned future employment on the New Jersey side to him.
Scarpello testified:
Mr. Franklin , that is, said that "The crane is going to Jersey very shortly and
I want you two boys on there when it goes to Jersey."
Q To whom was he talking?-A. He was talking to me.
Q. Anything else in that conversation?-A. No.
Scarpello further testified that at about 5.30 pin. of the same day, Franklin
took Testa and Scarpello to the parking lot in his automobile and while they were
together Franklin again mentioned work in New Jersey . He testified:
As we were going down , he told us that the crane was going to Jersey and
"I want you two boys to go on it." He says, "I think I can fix it up because
them fellows over there were pretty decent with me."
Q. Can you recall anything else of that conversation , Mr. Scarpello?-
A. Yes. He said that there was a lot of work for us over in Jersey, and he
wanted us on the machine.
Q. Anything else9-A. Naw.
John J. Testa , employed by the Respondent -Employer in March 1956 , and dis-
charged together with Scarpello on September 7, 1956, corroborated Scarpello's
account of the statement made by Franklin in the automobile He testified:
Q. Would you tell us of the conversation in the car.-A. Well, he told me
the same thing that he said the first time ; that he was going to get us working
over there ; and the boys were pretty decent to him, and he would talk to them.
Q Did he tell you what boys he was talking about?-A. No . He didn't
mention any names. But-
Testa also testified that prior to the above statement Franklin had on that same
day, which Testa fixed as "about the beginning of August" spoken to him about
New Jersey employment. He testified:
Q. Tell us of the conversation .-A. Well, he told me that he was going to
get me working on this rig across the river; that he got along pretty good with
the boys over there and he would talk to them. He asked me if I was willing to
go to work over there and I said, "Yes, sir."
BOOTH AND FLINN COMPANY 563
Franklin did not deny the statements above attributed to him. With respect to
the transfer of Testa and Scarpello from Philadelphia to New Jersey, Franklin
testified he talked to his New Jersey side master mechanic, Henry Behrend (who
had been employed August 27, 1956, and who was a member of Local 825, through
whom he was recruited by the Respondent-Employer) "about bringing them to the
New Jersey side" but according to Franklin he did not tell Behrend that the men
.,were to be employed and work under his supervision." Franklin testified:
A. The only thing I had with him was asking when this came up about these
fellows going to the Jersey side.
Q. Which fellows?-A. These two that are putting in the complaint now.
Q. Mr. Testa and Mr. Scarpello?-A. That's right.
According to Franklin in reply to his question Behrend "told me he would check
with his Local and let me know in a few days whether it was okay to bring them."
Franklin further testified.
Some time later I went to him again and asked him what he found out. He
told me at that time that he would check with the Local and they had a lot of
men out of work and he would rather I wouldn't bring them.
Franklin admitted that after Behrend was hired as master mechanic all operating
engineers (on the New Jersey side) were hired through him.
It is clear that in the case of Testa and Scarpello the Respondent-Employer
deferred to its New Jersey master mechanic. Franklin testified.
Q. (By Mr. Levine) Did you bring Mr. Scarpello and Testa over on the
Jersey side?-A. No.
Henry Behrend testified that he was a member of Local 825, that he was hired
by the Respondent-Employer as master mechanic on the New Jersey side August 27,
1956, and was terminated November 26. With respect to any conversations he had
with Franklin regarding the transfer of Testa and Scarpello to New Jersey, Behrend
testified that "on my first day on the job" Franklin "mentioned that he might like
to bring over the operator" of the crane but did not mention the oiler." Behrend
testified, "I told him at the time I couldn't answer him" but "some time later."
Franklin again asked "what did I think about bringing the operator over with the
machine" and he then told Franklin "I didn't think so because there was a lot of
men out of work in New Jersey."
Behrend further testified-
Q (By Mr. Levine.) Mr. Behrend, after your first conversation with Mr.
Franklin with regard to taking over the operator out to the Jersey side, did you
check this matter with anyone?-A. No.
Q. You checked it with no one in the Union9-A No one.
Q. Didn't you indicate to Mr. Franklin that you were going to check it?-
A. That's right. [Emphasis supplied.]
Q. But you did not check it?-A. I did not.
The Trial Examiner on the entire record does not credit Behrend's testimony to
the effect that he did not contact Local 825 regarding the matter of transfers from
Philadelphia to New Jersey believing it only reasonable to infer that he did so. The
Trial Examiner so finds, and further finds that in indicating to Franklin that the
transfers in question could not be made, Behrend was merely conveying the orders
of Local 825 to the Respondent-Employer.
Of course Job Superintendent Franklin' s statements to Testa and Scarpello regard-
ing his desire to transfer them to New Jersey at the time the cranes were moved was
not a firm offer of employment being predicated on his ability to "fix it up because
them fellows over there were pretty decent with me." The meaning of the qualifica-
tion became apparent at the time Franklin, who was in complete charge of the job
and ordered the hiring of all employees, asked Master Mechanic Behrend, who had
not yet completed his first day of employment with the Respondent-Employer (but
who, through his term of employment, was to actually hire any operating engineers
who were hired) "if it was possible to bring these men over." When Behrend re-
plied that "he would check with his Local [Local 825] and let me know whether it
was okay to bring them," he did not press for an answer but waited until "some
time later" before asking "what he [Behrendt found out," then accepted Behrend's
statement that "they had a lot of men out of work [in New Jersey] and he would
rather I wouldn't bring them," as precluding transfers from Philadelphia to New
Jersey.
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Surely it must be apparent that Franklin brought Testa and Scarpello to the brink
of employment on the New Jersey side of the job, but made a reappraisal after
talking to Behrend. One cannot expect the Trial Examiner to infer that Franklin
naively considered Behrend's remarks regarding the transfer of the Respondent-
Employer's operating engineers from Pennsylvania to New Jersey as a cogent argu-
ment against a foreign aid program . However, Behrend's statement was compelling
enough to stop the transfer , and cause the discharge of Testa and Scarpello to whom
in fact Franklin did not mention work in New Jersey after his first conversations, nor
did he ever tell them he was unable "to fix it up" with the unnamed "fellows over
there."
Scarpello, corroborated by Testa, testified that at about 8 a. in. on September 7,
1956, Pete Emrick , admittedly the master mechanic on the Philadelphia side of the
river, instructed him together with Testa to take the 20-ton crane to the New Jersey
side; that they did so and upon their return to the Philadelphia side they were
ordered by Harry Duncan , Jr.,3 to do some work with the 35 -ton crane and were at
the same time told by Duncan that in the afternoon they were to take this crane to
New Jersey and that "It is all arranged that you fellows are going to New Jersey to
work"; that in the afternoon Emrick ordered the crane taken to New Jersey and rode
across as a passenger, Scarpello and Testa operating it, that as they were returning
from New Jersey on foot Emrick remarked:
What do you think of them guys? I sent word for them over there to meet me
and they wouldn 't show up.
Upon arriving at the Philadelphia field office Scarpello and Testa were paid off.
The above -related testimony was not contradicted.
As found herein neither Scarpello nor Testa asked for employment on the New
Jersey side of the river before or after the discharge . The Trial Examiner is con-
vinced that a request after their discharges would have been sheer futility. Before
their discharges they had every right to rely on Franklin , who although he did not
specifically tell them they would be employed on the 'New Jersey side, did lead them
to believe that they would work there as he "could fix it" and never told them other-
wise. On September 7, they had the right to believe that the man who had the
authority to order them to take the cranes to New Jersey , and under whose direction
they were terminated , knew what he was doing and could make their discharges
final. The Trial Examiner so finds.4
The record discloses that jobs which Testa and Scarpello could have filled were
available on the New Jersey side during the time material herein.
Conclusion
As herein pointed out the General Counsel argues that a contract ( with union-shop
provisions ) was in effect between Local 825 and the Respondent -Employer by
reason of adoption . The Trial Examiner has rejected this contention
The facts herein are quite similar to National Labor Relations Board v. Brother-
hood of Painters, Decorators and Paperhangers of America , Carpet, Linoleum and
Resilient Tile Layers Local Union 419 et al., 242 F. 2d 477 (C. A. 10), in which
the court says in effect that if an employer wants to hire through a union, there being
no signed or oral contract , the union has engaged only in "passive acquiescence" not
an unfair labor practice.
In the opinion of the Trial Examiner the conduct of the Respondent -Employer
and Local 825 with respect to hiring practices was not violative of the Act, but the
conduct of both Employer and Union on September 7, 1956, insofar as it affected the
tenure of employment of Testa and Scarpello is an entirely different matter.
The Trial Examiner has found that Master Mechanic Behrend , an employee of
the Respondent -Employer charged with obtaining employees , at his own suggestion
3 A carpenter foreman.
4 The General Counsel in his beef advances the ingenious argument that the Respondent-
Employer adopted the existing agreement in effect between Local 825 and other employers
in the area and was therefore bound by the contract and a party thereto The argument
is patently specious
For the same purpose, during the hearing the General Counsel offered the constitution
and bylaws of Local 825 in evidence as proof that Belirend operated an illegal hiring hall
arrangement for Local 825 The Trial Examiner refused to admit the exhibit. The ruling
was appealed to the Board which reversed the Trial Examiner and admitted the exhibit
Under all the circumstances , the record as a whole , the Trial Examinei with due respect
to the Board finds no reason to change his original ruling , although the exhibit in evidence
would not alter the final result herein
BOOTH AND FLINN COMPANY 565
was authorized to "check with his Local" (Local 825) and ascertain "whether it
was okay" to bring employees (not members of Local 825) from the Philadelphia
side to the New Jersey side to work on the same job as members of Local 825
employed by the Respondent-Employer; that thereafter after making "the check,"
Behrend delivered the refusal of Local 825 which was accepted by the Respondent-
Employer as a guide to its action.
Here clearly , without seeking the aid of a nonexisting contract or the clauses of
a union's constitution or bylaws, "one who runs may read" plainly that the
Respondent-Employer wished and was ready to exercise its reserved right to employ
whom it cared to (in the instant matter Testa and Scarpello nonmembers of Local
825), but Local 825 forbade the exercise of the Respondent-Employer's right.
True the tone was a quiet "he would rather I wouldn't bring them" but as effective
as the loudest threatening shout.
Upon the entire record considered as a whole the Trial Examiner is convinced
that by the conduct above outlined both the Respondent-Employer and Local 825
have engaged in conduct violative of the Act for the reason that subject to Sec-
tion 8 (a) (3) of the Act employees are insulated in their job rights and when this
insulation is pierced by either employer or union there is such discrimination as to
unlawfully encourage or discourage union membership . By refusing to permit the
Respondent-Employer to transfer such employees as it wished from Philadelphia to
New Jersey, in the instant matter, Testa and Scarpello, for the reason that such
employees were not members of Local 825, the said Local 825 did restrain and
coerce , and is restraining and coercing employees in the exercise of rights guaran-
teed in Section 7 of the Act and thereby did engage in and is engaging in unfair
labor practices within the meaning of Section 8 (b) (1) (A) of the Act. By the
above-found conduct Local 825 did cause the Respondent-Employer to discriminate
against Testa and Scarpello in violation of Section 8 (a) (3) of the Act, and
thereby did engage in and is engaging in unfair labor practices within the meaning
of Section 8 (b) (2) of the Act. The Trial Examiner so finds.
The Trial Examiner is convinced that by the conduct above described and by each
of said acts the Respondent-Employer did discriminate and is discriminating in
regard to hire or tenure or terms of conditions of employment of Testa and Scar-
pello so as to encourage or discourage membership in a labor organization, and
thereby did engage in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (3) of the Act. The Trial Examiner so finds.
Concluding Findings
The Trial Examiner finds on all the evidence considered as a whole, and from his
observation of the witnesses, that the Respondent-Employer at the request of Local
825 refused employment to John J. Testa and Joseph F. Scarpello on September 7,
1956. This conduct of the Respondent-Employer constituted discrimination as to
their hire and tenure of employment, encouraging membership in Local 825 and
interfering , restraining , and coercing them in the exercise of the rights guaranteed
in the Act, contrary to the provisions of Section 8 (a) (3) and (1) of the Act.
The conduct of Local 825 in causing the Respondent-Employer so to discrim-
inate and thereby to restrain and coerce Testa and Scarpello in the exercise of
rights guaranteed by Section 7 of the Act, was violative of Section 8 (b) (1) and
(b) (2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent-Employer and Local 825 occurring in connection
with the operations of Respondent-Employer set forth 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 burdening and obstructing
commerce and the free flow of commerce
V. THE REMEDY
The record discloses that the Respondent-Employer has completed its work
on the Walt Whitman Bridge construction and has removed its equipment , there-
fore in framing a recommended remedy it seems entirely futile to order that Testa
and Scarpello be given the work on the New Jersey side of the Walt Whitman
Bridge denied them by the discrimination.
Likewise in framing a remedy to be carried out by Local 825 in order to re-
establish the status quo and in order that the members of Local 825, any non-
members seeking employment on jobs where such members are employed , as well
as employers , may be fully assured that Local 825 does not intend to engage in
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the conduct herein found to be illegal, obviously the posting of a notice on a union
hall bulletin board is not sufficient, therefore the Trial Examiner will recommend
wider publication.
The Trial Examiner should not and does not desire to frame a punitive remedy
but under all the circumstances in this case believes it proper to recommend, and
does recommend, that any notice ordered posted by Local 825 be also ordered
published by Local 825 in daily newspapers of general circulation in the area directly
served by the Walt Whitman Bridge, meaning on both ends thereof in Gloucester
City, New Jersey, and in Philadelphia, Pennsylvania. The selection of such a
paper should be confined to a daily newspaper of general circulation and not made
from papers serving specialized groups of readers such as legal news publications,
shoppers news, trade papers , labor publications , or foreign language papers.
Having found that the Respondents, as above named, and each of them have
engaged in and are engaging in certain unfair labor practices , it will be recommended
that they cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Having found that the Respondent-Employer unlawfully refused employment
to John J. Testa and Joseph F. Scarpello and having found that Local 825 unlaw-
fully procured the said refusal of employment the Trial Examiner will recommend
that the Respondent-Employer make Testa and Scarpello whole for any loss of
pay each may have suffered from the date of discrimination (September 7, 1956)
to the date of the Respondent-Employer's ceasing work on the Walt Whitman Bridge .5
Such losses of pay shall be computed in accordance with the Woolworth formula 6
and further, inasmuch as it has been found that both Respondents, Local 825 and the
Respondent-Employer, are responsible for the discrimination suffered by Testa and
Scarpello it will be recommended that they jointly and severally make them whole
for any loss of pay they may have suffered by reason of the discrimination.
It has been found that the Respondent Local 825 has engaged in unfair labor
practices within the meaning of Section 8 (b) (1) (A) and 8 (b) (2) of the Act.
It will, therefore, be recommended that Respondent Local 825 cease and desist there-
from and take certain affirmative action in order to effectuate the purposes of the
Act. Moreover, the Trial Examiner believes that a broad order is required to pre-
vent the recurrence of similar unlawful conduct by the Union in the futue. In order,
therefore, to make effective the interdependent guarantees of Seciton 7, to prevent
a recurrence of unfair labor practices, and thereby minimize industrial strife which
burdens and obstructs commerce, and thus effectuate the policies of the Act, the
Trial Examiner recommends that the Respondent Local 825 cease and desist from
in any manner infringing upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact and upon the entire record in the case,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Booth and Flinn Company of Pittsburgh , Pennsylvania , is engaged in commerce
within the meaning of the Act.
2. Local 825, International Union of Operating Engineers, AFL-CIO, is a labor
organization within the meaning of the Act, and admits certain employees of the
Respondent-Employer to membership.
3. By discriminating with respect to the hire and tenure of employment of John
J. Testa and Joseph F. Scarpello, thereby encouraging membership in Local 825 the
Respondent-Employer has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act, and also of Section 8 (a) (1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
5. By causing the Respondent-Employer to discriminate against employees in
violation of Section 8 (a) (3) of the Act, Local 825 has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (b) (2) of the Act.
6. By restraining and coercing employees in the exercise of rights guaranteed by
Section 7 of the Act, Local 825 has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (b) (1) (A) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
6 Crossett Lumber Co., 8 NLRB 440.
OF. W. Woolworth Company, 90 NLRB 289.