Ebasco Services Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1953

107 N.L.R.B. 617 (N.L.R.B. 1953)

EBASCO SERVICES INCORPORATED 617
ville, Florida, excluding the bookkeeper,2 and supervisors as
defined in the Act.
[Text of Direction of Election omitted from publication.]
2 In accord with our usual practice, we shall exclude the bookkeeper , as she does not have
a sufficient community of interest with the other employees . Preferred Oil Company, 77
NLRB 770.
EBASCO SERVICES INCORPORATED and JAMES E. ELSEA
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON
SHIPBUILDERS AND HELPERS OF AMERICA, AFL; DIS-
TRICT LODGE 57 INTERNATIONAL BROTHERHOOD OF
BOILERMAKERS, IRON SHIPBUILDERS AND HELPERS OF
AMERICA, AFL; LOCAL 679 INTERNATIONAL BROTHER-
HOOD OF BOILERMAKERS, IRON SHIPBUILDERS AND
HELPERS OF AMERICA, AFL; LOCAL 363 INTERNATIONAL
BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS
AND HELPERS OF AMERICA, AFL and JAMES E. ELSEA.
Cases Nos. 14-CA-940 and 14-CB-188. December 30, 1953
DECISION AND ORDER
On July 31, 1953, Trial Examiner Louis Plost issued his In-
termediate Report in the above-entitled proceeding, find that
the Respondents had engaged in and were engaging in certain
unfair labor practices, and recommending that they cease and
desist therefrom and take certain affirmative action as set
forth in the Intermediate Report attached hereto. Thereafter,
the Respondents filed exceptions to the Intermediate Report
and supporting briefs. i
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 Intermediate Report, the Respondents'
exceptions and briefs, and the entire record in this case, and
hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, with the following additions and modifi-
cations:
1. The Trial Examiner found that the 1950 Agreement be-
tween Respondent Ebasco and Respondent International Union
was invalid ab inito and is presently violative of the Act. We
agree.
iThe Respondents' request for oral argument is denied because the record and the Re-
spondents' exceptions and briefs, in our opinion, adequately present the issues and positions
of the parties.
107 NLRB No. 143.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As set forth in the Intermediate Report, Ebasco, the Respond -
ent Company, is engaged in construction and engineering work
in the public utility and industrial fields. On September 5, 1950,
Ebasco and Respondent International Brotherhood of Boiler-
makers, Iron Shipbuilders and Helpers of America, AFL,
executed a "National Agreement" applicable throughout the
United States and Canada, and pertaining to all of Ebasco's con-
struction work. In 1952 and early 1953, Ebasco and Respondent
International were operating under and giving effect to the
1950 agreement , which provided in part:
The Contractor recognizes the Union as the sole bar-
gaining agent for all of its construction employees in the
performance of all work coming within the terms of this
agreement and agrees to work the hours, pay the wages
and abide by the rules and regulations established or
agreed upon by the Union, and agrees to employ only
Boilermakers and Boilermaker Helpers in the performance
of the work included within the scope of this agreement;
provided, however, that all of the foregoing shall be
subject to the provisions of any and all existing laws.
Without amplification of their position, Respondent Unions
have urged the Board to construe the 1950 contract as assuring
only that members of the Respondent Unions "would not be
required to work alongside of unqualified mechanics." Such
a construction, however, is justified by neither the language of
the 1950 agreement quoted above, nor by any other provision
in the contract. Rather, we think it apparent that the plain
meaning of the term "Boilermaker and Boilermaker Helpers"
in the context in which it is used is to obligate Ebasco to em-
ploy only members of Respondent International or its sub-
ordinate locals--a practice clearly unlawful under the Act.
Nor is the contract purged of illegality, as Ebasco contends,
by the portion of the quoted language which purports to make
the illegal union-security provision "subject to the provisions
of any and all existing laws." The Board and the courts have
held uniformly that so-called "savings" or "separability"
clauses, which recognize the controlling effect of applicable
laws, or which modify union-security provisions to conform to
existing laws with which they maybe in conflict, do not validate
agreements containing unlawful restrictions on employment.2
There is nothing in the record, moreover, to indicate that
Respondent Ebasco and Respondent International Union did not
intend to enforce the unlawful employment restriction in the 1950
Z N. L R. B. v. Gaynor News Co., 197 F. 2d 719 (C. A. 2), 345 U. S. 962 (case restored to
docket for reargument); Red Star Express Lines v. N. L. R B., 196 F. 2d 78 (C. A. 2);
Unique Art Manufacturing Co., 83 NLRB 1250; Reading Hardware Corporation, 85 NLRB 610,
611; Essex County and Vicinity Dist. Council of Carpenters, etc., 95 NLRB 969, 985, 993;
Green Bay Drop Forge Co., 97 NLRB 642, 643; Gottfried Baking Co., Inc., 103 NLRB 227.
EBASCO SERVICES INCORPORATED 619
contract. Indeed, as is more particularly noted below and in the
Intermediate Report, the record demonstrates that the intention
to enforce the provision was in fact carried out in an unlawful
manner. Consequently, we find that by maintaining in being the
1950 contract during 1950 and 1953, Respondent Ebasco violated
Section 8 (a) (1) and 8 (a) (2) and 8 (a) (3) of the Act, and Re-
spondent International Union violated Section 8 (b) (1) (A) and 8
(b) (2). 3
2. We also agree with the Trial Examiner's finding that the
1950 National Agreement was unlawfully administered at Re-
spondent Ebasco's Joppa project. In so finding, we rely
particularly upon the following factors, which aside from the
matter of the demeanor of the witnesses concerned,4 provide
weighty, and to a certain degree independent, support of the
Trial Examiner's refusal to credit the exculpatory testimony
offered by the Respondents:
(a) The provisions of Respondent Local 363's "working rules
covering construction work":5 The "working rules" are the
embodiment of a 1950 agreement, subsequently amended, be-
tween Local 363 and a contractors' negotiating committee with
respect to wages and working conditions in field construction
within the territorial jurisdiction of Local 363. These Rules
were "followed" at the Joppa project with respect to "contract
relations that affected the employer and the union." Like the
1950 National Agreement," the rules provided that the con-
tractor "agrees to employ only Boilermakers and Helpers";
that the "toolroom man shall be a member of Lodge No. 363";
and that competent "Boilermakers and Helpers" shall replace
persons hired by the contractor because the Union did not fill
the contractor's requests for men. 6
(b) The pretrial admissions of Dunn: Dunn, the business agent
of Local 363, denied that the Joppa project was a closed shop.
However, in a pretrial statement which was introduced into
evidence, and which was affirmed as being "still true and cor-
'See N. L. R. B v. F. H. McGraw & Co., 206 F. 2d 635, 32 LRRM 2220, 2223 (C. A. 6);
Red Star Express Lines v. N L. R. B., 196 F. 2d 78, 81 (C. A. 2); accord: N. L. R. B. v
Childs Co., 195 F 2d 617, 618-619 (C. A. 2); N L. R. B. v. Acme Mattress Co., 195 F 2d
524, 525, 528 (C. A. 7); Port Chester Electrical Construction Corporation, 97 NLRB 354, 355;
Monolith Portland Cement Company, 94 NLRB 1358, 1361-1365; Hager and Sons Hinge Mfg.
Co., 80 NLRB 163, 165.
4 "Nothing in the statutes suggests the Labor Board should not be influenced by the ex-
aminer's opportunity to observe the witnesses he hears and sees and the Board does not,"
N. L. R. B. v. Universal Camera Corporation, 340 U S. 474, 495. "An examiner's findings on
veracity must not be overruled without a very substantial preponderance in the testimony as
recorded." Ibid., 190 F. 2d 429, 430 (C A. 2).
5See Heating, Piping and Air Conditioning Contractors New York Assn., 102 NLRB 1646, and
Philadelphia Iron Works, 103 NLRB 1017, where the Board, in determining the legality of
union-security provisions, looked, respectively, to the rules of a joint adjustment board
and the Union's rules--both of which were incorporated into the contracts by reference.
6Similar provisions allowing the hiring of nonunion members when the employer's needs
are not satisfied, have been considered with disfavor in finding illegality in union- security
provisions. See Julius Resnick, Inc., 86 NLRB 38, 39-40; Mundet Cork Corporation, 96 NLRB
1142, 1145; Red Star Express Lines v. N. L. R. B., 196 F 2d 78 (C. A. 2).
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rect." Dunn admitted that all employees at the Joppa project
were either members of his own local or "members of other
locals cleared for the job with my office." In the same state-
ment Dunn also admitted that "all the requirements of Ebasco
for boilermakers at the Joppa job have been filled by work
orders placed with my office usually by the general foreman." T
(c) The testimony of John Moore: Moore, a boilermaker at
the Joppa project, testified without specific contradiction that
he was "referred" to the Joppa job by Dunn. The "referral"
was a slip of paper upon which was listed the name of Re-
spondent International, Moore's union serial number, and the
name of the job steward to whom Moore reported.
(d) The discriminatory discharge of James Elsea: As set forth
in the Intermediate Report, Elsea, who had incurred the dis-
favor of Respondent Local 363 and Respondent District Lodge 57,
was discriminatorily discharged pursuant to the 1950 National
Agreement by Respondent Ebasco upon Local 363's unlawful
request.
We are convinced, therefore, that the 1950 National Agreement
was administered at the Joppa project as establishing a closed
shop; that, pursuant to the intendment of the agreement and
Local 363's "working rules," boilermakers were hired at the
Joppa project under a referral system, which was applied dis-
criminatorily in favor of members of Respondent International
or its subordinate locals; 8 and that, also pursuant to the 1950
National Agreement and Local 363's "working rules," Local
363 exercised unlawful powers over the job-retention rights of
employees at the Joppa project. Accordingly, we find that
Respondent Ebasco, in violation of Section 8 (a) (1), 8 (a) (2),
and 8 (a) (3) of the Act, and Respondent International Union
and Respondent Local 363, in violation of Section 8 (b) (1) (a)
and 8 (b) (2), unlawfully enforced and administered the 1950
National Agreement.9
3. As indicated above, we agree with the Trial Examiner's
finding that Respondent Ebasco, acting pursuant to the 1950
National Agreement with Respondent International Union,
discriminatorily discharged James Elsea upon the unlawful
7 "When the witness testified that his prior statement was true, the prior statement be-
comes substantive evidence . . . ," Wigmore, Evidence (2nd. Ed.), Sec. 1018, p. 139 of 1951
Pocket Supplement. Accord: Steward v. B. & O. Railroad Company, 137 F. 2d 527 (C A. 2);
Zimberg v. U. S., 142 F. 2d 133, 136 (C. A 2); Root-Carlin, Inc., 92 NLRB 1213, footnote 3;
Trafford Coach Lines. 97 NLRB 938, 99 NLRB 399.
8 The hiring of employees through a union is unlawful where there is evidence that the Union
discriminated in supplying the personnel. Hunkin-Conkey Construction Company, 95 NLRB
423, 435. Accord: National Union of Marine Cooks and Stewards, 90 NLRB 1099, 1100-1102;
Missouri Boiler & Sheet Iron Works, 93 NLRB 319. 320; Portchester Electrical Construction
Corporation, 97 NLRB 354, 355, footnote 4.
9Mundet Cork Corporation, 96 NLRB 1142, 1145; Boss Overall Cleaners, 100 NLRB 1210,
1236; Local 1664 (Dock Division) ILA District Council No. 1, et al., 103 NLRB 1217; Phila-
delphia Iron Works, 103 NLRB 596; N. L. R. B. v. F. H. McGraw Co., 206 F. 2d 635 (C. A. 6);
N. L. R. B. v. Gaynor News, 197 F. 2d 719 (C. A. 2), 345 U. S. 962 (case restored to docket
for reargument).
EBASCO SERVICES INCORPORATED 621
request of Respondent Local 363. Ebasco thereby violated
Section 8 (a) (1) and 8 (a) (3) of the Act, and the International
Union and Local 363 thereby violated Sections 8 (b) (1) (A) and
8 (b) (2). However , in so finding , we do not rely upon the portion
of Elsea ' s testimony with respect to his conversation on
January 2, 1953, with Whirledge, "the pusher," in which Elsea
related that Whirledge had said that he (Whirledge) had been
told by Jacquot that Jacquot was going to discharge Elsea. Such
testimony is hearsay and therefore incompetent.
4. The Trial Examiner found that by the conduct of Blevins,
the business manager and agent of Respondent District Lodge
57, in threatening Elsea with loss of employment, both Re-
spondent District Lodge 57 and Respondent Local 679 violated
Section 8 (b) (1) (A) of the Act. We disagree. District Lodge 57
is responsible for the acts of its business manager and agent,
and accordingly is liable under Section 8 (b) (1) (A) for Blevin's
coercive threats to Elsea. However, neither the fact that Local
679 is a subordinate local of District Lodge 57, nor the fact
that Local 679 has territorial jurisdiction over Chattanooga,
Tennessee , where the coercive threats were made, can render
Local 679 responsible for Blevins' conduct. As there is no
evidence of any overt acts committed by Local 679 or its
agents , we shall order the complaint dismissed insofar as it
alleges that Local 679 violated the Act.
THE REMEDY
As the Trial Examiner recommended , we shall order Re-
spondent Ebasco , Respondent International Union, and Re-
spondent Local 363, jointly and severally, to make whole James
Elsea , in the manner set forth in the Intermediate Report, for
any loss of pay suffered as the result of his discriminatory
discharge. The Regional Director is hereby directed to take all
reasonable measures to assure that the back-pay liability is
borne equally by Respondent Ebasco on the one hand, and
Respondent International Union and Respondent Local 363 on the
other.
Respondent Ebasco asserted in its brief that it had terminated
its construction contract with respect to the Joppaproject, and
no longer had access thereto. We shall nevertheless, as the
Trial Examiner recommended , order Ebasco to post notices at
the Joppa project, because the appropriateness of the posting
provision can best be resolved in the compliance stage of this
proceeding.
ORDER
Upon the entire record in the case, and pursuant to Section 10
(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that:
337593 0 - 55 - 41
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I. The Respondent, Ebasco Services Incorporated, New York
City, New York, its officers, agents , successors, and assigns
shall:
(a) Cease and desist from:
(1) Giving effect to, performing, or in any way enforcing the
September 5, 1950, National Agreement with International
Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of
America, AFL, or any other understanding or bargaining
agreement it may have regarding the enforcement of the Working
Rules of said International Union or its affiliates, and from
entering into or enforcing any extension, renewal, modification,
or supplement to such National Agreement or other bargaining
agreement containing union-security provisions, except as
authorized by the proviso to Section 8 (a) (3) of the Act.
(2) Encouraging membership in the said International Union
or its subordinate Districts or Locals, or in any other labor
organization, by discharging any of its employees, or by dis-
criminating in any other manner in regard to their hire and
tenure of employment or any term or condition of their
employment, except to the extent permitted by Section 8 (a)
(3) of the Act.
(3) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized
in 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) Withdraw and withhold all recognition from International
Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of
America, AFL, and from District Lodge 57 and Local 363, In-
ternational Brotherhood of Boilermakers, Iron Shipbuilders and
Helpers of America, AFL, and from any other subordinate
Lodge or Local, or any successor labor organizations thereto,
as the representative of its employees for the purpose of
dealing with them in regard to grievances, labor disputes,
wages , rates of pay, hours of employment, or other conditions
of employment, unless and until such labor organizations shall
be certified by the National Labor Relations Board as the rep-
resentatives of the employees concerned.
(2) Jointly and severally with Respondent International Union
and Respondent Local 363 make whole James E. Elsea, in the
manner set forth in the section of the Intermediate Report
entitled "The Remedy" and hereinabove, for any loss of pay
he may have suffered because of the discrimination against him.
(3) Preserve and, upon request make available to the Board
or its agents, for examination and copying, all payroll records,
timecards, personnel records and reports, and all other
records necessary to determine the amount of back pay due
under the terms of this Order.
EBASCO SERVICES INCORPORATED 623
(4) Post at its Joppa, Illinois, project, copies of the notice
attached hereto and marked "Appendix A."10 Copies of said
notice, to be furnished by the Regional Director of the Four-
teenth Region, shall, after being duly signed by the Respond-
ent Company's representative, be posted by said Respondent
immediately upon receipt thereof and maintained byitfor sixty
(60) consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are customarily
posted. Reasonable steps shall be taken by said Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(5) Notify the Regional Director for the Fourteenth Region, in
writing, within ten (10) days from the date of this Order, what
steps it has taken to comply herewith.
II. The Respondent, International Brotherhood of Boiler-
makers, Iron Shipbuilders and Helpers of America, AFL, its
officers , representatives , agents , successors , and assigns,
shall:
(a) Cease and desist from:
(1) Restraining or coercing the employees of Respondent
Ebasco Services Incorporated in the exercise of the rights
guaranteed in Section 7 of the Act, except to the extent that
such rights maybe affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) thereof.
(2) Attempting to cause, or causing, Respondent Ebasco, its
officers , agents , successors , or assigns , to discharge , suspend,
layoff, or in any other manner discriminate against its em-
ployees in regard to their hire or tenure of employment, or any
term or condition of employment in order to encourage member-
ship in said International Union or its subordinate Locals or
Lodges, except as authorized in Section 8 (a) (3) of the Act.
(3) Giving any effect to, performing, or enforcing the Sep-
tember 5, 1950, National Agreement with Respondent Ebasco, or
to any understanding or agreement it may have regarding said
contract, or entering into any extension, renewal, or modifica-
tion of said contract.
(4) Requiring employees of, or applicants for employment
with, Respondent Ebasco to obtain clearances or job referrals
from said Respondent International Union and/or its sub-
ordinate Locals or Lodges as a condition of employment, unless
such clearances and referrals are made on a nondiscriminatory
basis pursuant to an agreement entered into inconformity with
Section 8 (a)-(3) of the Act.
(5) In any other manner interfering with, restraining, or
coercing employees of Respondent Ebasco in the exercise of
the rights guaranteed in Section 7 of the Act, except to the
io 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."
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extent that such rights may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment , as authorized by Section 8 (a) (3)of the Act.
(b) Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(1) Jointly and severally with Respondent Ebasco and Re-
spondent International Union , make whole James E. Elsea,
in the manner set forth in the section of the Intermediate
Report entitled " The Remedy" and hereinabove , for any loss
of pay he may have suffered because of the discrimination
against him
(2) Post in conspicuous places in its business offices, and
in all places where notices to members are customarily
posted, copies of the notice attached hereto and marked as
"Appendix B." ,u Copies of said notice, to be furnished by the
Regional Director for the Fourteenth Region , shall, after
being duly signed by an authorized representative , be posted
by Respondent International Union immediately upon receipt
thereof and be maintained by it for a period of sixty (60) con-
secutive days thereafter. Reasonable steps shall be taken to
insure that said notices are not altered , defaced, or covered
by any other material.
(3) Mail signed copies of the notice attached hereto and
marked "Appendix B" to the Regional Director for the
Fourteenth Region , for posting , Respondent Ebasco being
willing, at Ebasco's Joppa project where notices to employees
are customarily posted . Copies of the notice , to be furnished
by the Regional Director for the Fourteenth Region , shall be
returned forthwith to the Regional Director after they have
been signed by an authorized representative of Respondent
International Union , for such posting.
(4) Notify the Regional Director for the Fourteenth Region,
in writing, within ten ( 10) days from the date of this Order,
what steps it has taken to comply herewith.
III. The Respondent , Local 363, International Brotherhood
of Boilermakers , Iron Shipbuilders and Helpers of America,
AFL, its officers, representatives , agents , successors, and
assigns , shall:
(a) Cease and desist from:
(1) Restraining or coercing the employees of Respondent
Ebasco Services Incorporated in the exercise of the rights
guaranteed in Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) thereof.
(2) Attempting to cause, or causing, Respondent Ebasco, its
officers , agents, successors , or assigns , todischarge, suspend,
layoff , or in any other manner discriminate against its em-
ployees in regard to their hire or tenure of employment or
any term or condition of employment in order to encourage
t1See footnote 10, supra.
EBASCO SERVICES INCORPORATED 625
membership in said Local 363, except as authorized in Section
8 (a) (3) of the Act.
(3) Requiring employees of, or applicants for employment
with, Respondent Ebasco to obtain clearances or job referrals
from said Respondent Local 363 as a condition of employment,
unless such clearances and referrals are made on a nondis-
criminatory basis pursuant to an agreement entered into in
conformity with Section 8 (a) (3) of the Act.
(4) In any other manner interfering with, restraining, or
coercing employees of Respondent Ebasco in the exercise of
the rights guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition
of employment , as authorized by Section 8 (a)(3) of the Act.
(b) Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(1) Jointly and severally with Respondent Ebasco and Re-
spondent International Union make whole, in the manner set
forth in the section of the Intermediate Report entitled "The
Remedy" and hereinabove , James E. Elsea for any loss of
pay he may have suffered because of the discrimination against
him.
(2) Post in conspicuous places in its business offices, and
in all places where notices to members are customarily
posted, copies of the notice attached hereto and marked as
"Appendix C."2 Copies of said notice , to be furnished by the
Regional Director for the Fourteenth Region, shall, after
being duly signed by an authorized representative , be posted
by Respondent Local 363 , immediately upon receipt thereof
and be maintained by it for a period of sixty ( 60) consecutive
days thereafter . Reasonable steps shall be taken to insure
that said notices are not altered , defaced , or covered by any
other material.
(3) Mail signed copies of the notice attached hereto and
marked "Appendix C " to the Regional Director for the
Fourteenth Region, for posting, Respondent Ebasco being
willing, in places where notices to employees are customarily
posted at the Joppa project . Copies of the notice, to be
furnished by the Regional Director for the Fourteenth Region,
shall, after being signed by an authorized representative of
Respondent Local 363, be returned forthwith to the Regional
Director for such posting.
(4) Notify the Regional Director for the Fourteenth Region,
in writing , within ten (10) days from the date of this Order,
what steps it has taken to comply herewith.
IV. The Respondent , District Lodge 57 , International
Brotherhood of Boilermakers , Iron Shipbuilders and Helpers
of America , AFL, its officers , representatives, agents , succes-
sors , and assigns , shall:
u See footnote 10, supra.
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Cease and desist from threatening employees of Re-
spondent Ebasco Services Incorporated with loss of employ-
ment, or in any other manner interfering with, restraining,
or coercing employees of Respondent Ebasco in the exercise
of the rights guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition
of employment , as authorized by Section 8 (a)(3) of the Act.
(b) Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(1) Post in conspicuous places in its business offices and
in all places where notices to members are customarily
posted, copies of the notice attached hereto and marked
"Appendix D." 3 Copies of said notice , to be furnished by the
Regional Director for the Fourteenth Region, shall, after
being duly signed by an authorized representative, be posted
by Respondent District Lodge 57 immediately upon the receipt
thereof and be maintained by it for a period of sixty (60)
consecutive days thereafter . Reasonable steps shall be taken
to insure that said notices are not altered , defaced, or
covered by any other material.
(2) Notify the Regional Director for the Fourteenth Region,
in writing , within ten ( 10) days from the date of this Order,
what steps it hhs taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is , dismissed insofar as it alleges that Respondent
Local 679 , International Brotherhood of Boilermakers, Iron
Shipbuilders and Helpers of America , AFL, has engaged in
any unfair labor practices.
Member Murdock took no part in the consideration of the
above Decision and Order.
uSee footnote 10, 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
our employees that:
WE WILL NOT give effect to, perform , or in any way
enforce the September 5, 1950, National Agreement with
International Brotherhood of Boilermakers , Iron Ship-
builders and Helpers of America , AFL, or any other
understanding or bargaining agreement we may have
regarding the enforcement of the Working Rules of said
International Union or its affiliates , and we will not
EBASCO SERVICES INCORPORATED 627
enter into or enforce any extension , renewal, modification,
or supplement to such National Agreement or other
bargaining agreement containing union-security provi-
sions, except as authorized by the proviso to Section 8 (a)
(3) of the Act.
WE WILL NOT encourage membership in the said
International Union or its subordinate Districts or Locals,
or in any other labor organization , by discharging any
of our employees, or by discriminating in any other
manner in regard to their hire and tenure of employment,
or any term or condition of their employment, except to
the extent permitted by 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
the rights guaranteed in Section 7 of the Act, except to
the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3)
of the Act.
WE WILL withdraw and withhold all recognition from
International Brotherhood of Boilermakers, Iron Ship-
builders and Helpers of America, AFL, and from District
Lodge 57 and Local 363, International Brotherhood of
Boilermakers, Iron Shipbuilders and Helpers of America,
AFL, and from any other subordinate Lodge or Local, or
any successor labor organizations thereto, as the repre-
sentative of our employees for the purpose of dealing
with them in regard to grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions
of employment, unless and until such labor organizations
shall be certified by the National Labor Relations Board
as the representatives of the employees concerned.
WE WILL make James E. Elsea whole for any loss of
pay he may have suffered as a result of the discrimination
practiced against him.
All our employees are free to become, remain, or to refrain
from becoming members of the above-named unions, or any
other labor organizations, except to the extent that this right
may be affected by an agreement authorized by Section 8 (a) (3)
of the Act.
EBASCO SERVICE INCORPORATED,
Employer.
Dated ................ By ....................................................
(Representative) (Title)
This notice must remain posted for 60 days after the date
of posting, and must not be altered, defaced, or covered by
any other material.
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
TO ALL MEMBERS OF INTERNATIONAL BROTHERHOOD
OF BOILERMAKERS , IRON SHIPBUILDERS AND HELPERS
OF AMERICA , AFL, AND EMPLOYEES OF EBASCO SERVICES
INCORPORATED
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 restrain or coerce the employees of
Ebasco Services Incorporated in the exercise of the rights
guaranteed in Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) thereof.
WE WILL NOT attempt to cause, or cause Ebasco
Services Incorporated, its officers, agents, successors, or
assigns, to discharge, suspend, layoff, or in any other
manner discriminate against its employees in regard to
their hire or tenure of employment or any term or con-
dition of employment in order to encourage membership
in this International Union or its subordinate Locals or
Lodges, except as authorized in Section 8 (a) (3) of the
Act.
WE WILL NOT give any effect to, perform, or enforce
the September 5, 1950, National Agreement with Ebasco
Services Incorporated, or to any understanding or agree-
ment this International Union may have regarding said
contract, and we will not enter into any extension, re-
renewal, or modification of said contract.
WE WILL NOT require employees of, or applicants for
employment with, Ebasco Services Incorporated to obtain
clearances or job referrals from this International Union
and/or its subordinate Locals or Lodges as a condition
of employment, unless such clearances and referrals
are made on a nondiscriminatory basis, pursuant to an
agreement entered into in conformity with Section 8 (a) (3)
of the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees of Ebasco Services In-
corporated in the exercise of the rights guaranteed in
Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as
authorized by Section 8 (a) (3) of the Act.
EBASCO SERVICES INCORPORATED 629
WE WILL make James E . Elsea whole for any loss of
pay he may have suffered as a result of the discrimination
practiced against him.
INTERNATIONAL BROTHERHOOD OF BOILER-
MAKERS, IRON SHIP BUILDERS, AND HELPERS
OF AMERICA, AFL,
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.
APPENDIX C
NOTICE
TO ALL MEMBERS OF LOCAL 363, INTERNATIONAL
BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS
AND HELPERS OF AMERICA, AFL, AND TO ALL EM-
PLOYEES OF EBASCO SERVICES INCORPORATED
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 restrain or coerce the employees of
Ebasco Services Incorporated 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 re-
quiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) thereof.
WE WILL NOT attempt to cause, or cause, Ebasco
Services Incorporated, its officers, agents, successors,
or assigns , to discharge, suspend, layoff, or in any other
manner discriminate against its employees in regard to
their hire or tenure of employment or any term of condi-
tion of employment in order to encourage membership
in this Local, except as authorized in Section 8 (a) (3) of
the Act.
WE WILL NOT require employees of, or applicants
for employment with, Ebasco Services Incorporated to
obtain clearances or job referrals from this Local as a
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condition of employment, unless such clearances and
referrals are made on a nondiscriminatory basis pursuant
to an agreement entered into in conformity with Section
8 (a) (3) of the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees of Ebasco Services In-
corporated , in the exercise of the rights guaranteed in
Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as
authorized by Section 8 (a) (3) of the Act.
WE WILL make James E. Elsea whole for any loss of
pay he may have suffered as a result of the discrimination
practiced against him.
LOCAL 363, INTERNATIONAL BROTHERHOOD
OF BOILERMAKERS, IRON SHIPBUILDERS
AND HELPERS OF AMERICA, AFL,
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.
APPENDIX D
NOTICE
TO ALL MEMBERS OF DISTRICT LODGE 57, INTERNATIONAL
BROTHERHOOD OF BOILERMAKERS , IRON SHIPBUILDERS
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, we hereby notify you that:
WE WILL NOT threaten employees of Ebasco Services
Incorporated with loss of employment, and will not in
any other manner interfere with, restrain , or coerce
employees of said Ebasco in the exercise of the rights
guaranteed in Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requiring
EBASCO SERVICES INCORPORATED 631
membership in a labor organization as a condition of
employment, as authorized by Section 8 (a) (3) of the Act.
DISTRICT LODGE 57, INTERNATIONAL
BROTHERHOOD OF BOILERMAKERS,
IRON SHIPBUILDERS AND HELPERS OF
AMERICA, AFL,
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
(14-CA-940)
Upon an amended charge filed May 14,1953,1 by James E. Elsea, an individual, the General
Counsel of the National Labor Relations Board, herein called the Board, by the Regional
Director of its Fourteenth Region, (St. Louis, Missouri), issued a complaint dated May 15,
1953 , against Ebasco Services Incorporated , herein called the Respondent Company (or
Company) alleging that the Respondent Company had engaged in and was engaging in unfair
labor practices within the meaning of Section 8 (a) (1), (2), and (3) and Section 2 (6) and (7) of
the National Labor Relations Act, as amended, 61 Stat. 161, herein called the Act. Copies
of the complaint and the answer together with a notice of hearing were duly served upon the
Company, the International and various of its locals, herein called jointly the Unions, 2 and
the complainant, Elsea.
With respect to the unfair labor practice the complaint alleged in substance that on or about
September 5, 1950 , the Respondent Company entered into an illegal contract with International
Brotherhood of Boilermakers, Iron Shipbuilders, and Helpers of America, AFL, herein called
Respondent International, and is now maintaining and enforcing said illegal contract which
is enforced so that it requires employees to become and remain members of the International
or its subordinate locals and requires applicants for employment to be approved by said
Unions and further that on or about January 2, 1953, the Company discharged James E. Elsea,
at the request of the said Unions, and has at all times since refused to reemploy him.
On May 15, 1953, the Respondent Company filed an answer denying that it had engaged in
any of the unfair labor practices alleged.
(14-CB-188)
Likewise on an amended charge filed by the aforesaid James E. Elsea on May 14, 1953,
the Regional Director issued a complaint likewise dated May 15, 1953, against International
Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America, AFL; District
Lodge 57, International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of
America, AFL; Local 679, International Brotherhood of Boilermakers, Iron Shipbuilders and
Helpers of America, AFL; Local 363, International Brotherhood of Boilermakers, Iron Ship-
builders and Helpers of America, AFL, all herein jointly called the Unions (or Respondent
Unions) alleging that the Respondent Unions had engaged in and were engaging in unfair labor
practices within the meaning of Sections 8 (b) (1) (A) and 8 (b) (2) and 2 ( 6) and (7) of the Act.
'The original charge was filed February 16, 1953.
2 More specifically identified hereafter.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of the complaint, the charge, and notice of hearing were duly served on all parties
affected.
With respect to the unfair labor practices the complaint alleged in substance that:
(a) At all times since on or about September 5, 1950, the Company and the Respondent
Union have been parties to, have maintained and have enforced, and are maintaining and
enforcing an illegal written agreement by which employees of the Company as a condition
of employment must be members of the International and/or one of the Respondent Unions
and approved by them at the time of employment.
(b) At all times since December 1, 1952, Local 363 has acted as the Company's agent in
the selection and employment of workers for the Company at the powerplant project located
at Joppa, Illinois, in order to encourage and require membership in said Local 363 or some
other local of the International.
(c) On or about January 2, 1953, Respondent Unions by their officers, agents, and repre-
sentatives caused the Company to discharge James E. Elsea by requesting the Company to
discharge him or by refusing to grant their approval to his continued employment by the
Company and further that on or about January 2, 1953, James E. Elsea was discharged from
his employment by the Company at the powerplant project located at Joppa, Illinois, and was
thereafter refused reinstatement.
On May 15, 1953, the Respondent Unions filed an answer denying that they had engaged in
any of the unfair labor practices as alleged in the complaint.
On May 15, 1953, the Regional Director for the Fourteenth Region issued an "Order Con-
solidating Cases," Nos. 14-CA-940 and 14-CB-188 and gave due notice thereof to all the
parties. No consolidated complaint was issued by the Regional Director.
Pursuant to notice a hearing was held at St. Louis, Missouri, June 15-16, 1953, before
Louis Plost, the undersigned Trial Examiner. All the parties were represented by counsel,
who are herein referred to in the names of their principals. All parties participated and
were afforded full opportunity to be heard, toexamine and cross-examine witnesses, to intro-
duce evidence bearing upon the issues, to argue orally and to file briefs, proposed findings
of fact, and conclusions of law (either or all) with the undersigned. The parties did not argue
orally. A date was set for the filing of briefs, conclusions, and/or findings.3
At the close of the General Counsel's case-in-chief, and again at the close of the bearing,
the undersigned denied motions by the Respondents to dismiss the complaint. The undersigned
granted a motion by the General Counsel to conform the pleadings to the proof with respect
to spellings , names , places, and like minor variances. Briefs have been received from the
General Counsel and the Respondent Employer.
Upon the entire record and from his observation of the witnesses, the undersigned makes
the following:
FINDINGS OF FACT
L THE BUSINESS OF THE RESPONDENT EMPLOYER
It is admitted that the Respondent Company, Ebasco Services Incorporated, is and has been
at all times material herein, a New York corporation with a principal office located in New
York, New York. Respondent Company is engaged in construction and engineering work in
public utility and industrial fields throughout the severalStates of the United States and main-
tains branch offices at Chicago, Illinois, Washington, D. C., and Paris, France. The only
facility involved in this proceeding is a project located at Joppa, Illinois, where Respondent'
Company is engaged in the construction of a powerplant for Electric Energey, Inc., which
has contracted to furnish power to a plant of the Atomic Energy Commission at Paducah,
Kentucky.
During the calendar year 1952 Respondent Company received more than $2,000,000 from
materials and services furnished by it to instrumentalities of interstate commerce. During
the calendar year 1952 Respondent Company received in excess of $100,000 from materials
and services furnished by it to Electric Energy, Inc., at the Joppa, Illinois, powerplant
project referred to above.
The Company concedes that is engaged in commerce within the meaning of the Act.
9On motion of the Company, made after the hearing, the date for filing briefs , etc., was
extended by the Chief Trial Examiner to July 24.
EBASCO SERVICES INCORPORATED 633
II. THE ORGANIZATIONS INVOLVED
International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America, AFL;
District Lodge 57, International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers
of America, AFL; Local 679, International Brotherhood of Boilermakers, Iron Shipbuilders
and Helpers of America, AFL; and Local 363, International Brotherhood of Boilermakers,
Iron Shipbuilders and Helpers of America, AFL; all of which are hereinafter collectively
referred to as the Unions, are labor organizations within the meaning of Section 2 (5) of the
Act, and admit employees of the Respondent Company to membership.
Ill. THE UNFAIR LABOR PRACTICES
A The contract
I
There is no dispute that the Respondent Company and the Respondent International under
date of September 5, 1950, negotiated , entered into , and are now operating under and giving
effect to a certain contract 4 with respect to the employment of certain labor in which:
4 The contract reads:
NATIONAL AGREEMENT
Between the
EBASCO SERVICES INCORPORATED Two Rector Street, New York 6, N. Y.
Company Address
(Hereinafter referred to as the "Contractor")
and the
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS , IRON SHIP BUILDERS AND
HELPERS OF AMERICA
(Hereinafter referred to as the "Union")
This agreement shall be effective in all places within the boundaries of the United
States , its possessions and the Dominion of Canada where work is being performed by
the Contractor -- or by any person, firm or corporation owned or financially controlled
by the Contractor, and shall apply exclusively to all of Contractor's field construction
work ( including construction , erection, rigging, unloading, fabrication, assembling,
dismantling and repairing performed in the field) coming under the jurisdiction of the
Union.
The Contractor recognizes the Union as the sole bargaining agent for all of its con-
struction employees in the performance of all work coming within the terms of this
agreement and agrees to work the hours , pay the wages and abide by the rules and
regulations established or agreed upon by the Union, and agrees to employ only Boiler-
makers and Boilermaker Helpers in the performance of the work included within the
scope of this agreement; provided , however, that all of the foregoing shall be subject
to the provisions of any and all existing laws.
The Contractor shall have the right to send a General Foreman to supervise the work
into any territory where work is being performed , or is to be performed , and shall
also have the right to send mechanics who are especially skilled in some part of the
work being performed, when local men skilled in this special work are unobtainable.
Both parties further agree to be governed by the terms and provisions of the agree-
ment effective October 1, 1949, creating the National Joint Board for Settlement of
Jurisdictional Disputes.
In consideration of the foregoing , the Contractor agrees that there shall be no lockout
of members of the Union, and the Union agrees that no stoppage of work or any strike
of its members shall be entered into pending the settlement of any dispute. It shall,
however, not be considered a violation of this agreement if members of the Union
refuse to cross a picket line legally established in accordance with the laws of the
Building and Construction Trades Department, It, likewise, shall not be considered a
lockout to lay off members of the Union when other labor organizations strike.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Contractor recognizes the Union as the sole bargaining agent for all of its construc-
tion employees in the performance of all work coming within the terms of this agree-
ment and agrees to work the hours, pay the wages and abide by the rules and regulations
established or agreed upon by the Union, and agrees to employ only Boilermakers and
Boilermaker Helpers in the performance of the work included within the scope of this
agreement; provided, however, that all of the foregoing shall be subject to the provisions
of any and all existing laws.
In the McGraw case 5 recently decided by the United States Court of Appeals, Sixth Circuit,
the court in passing on a similar contract held:
... whether the employees were actually coerced or not, the execution of such an agree-
ment, without more, tends to encourage membership in a labor organization and con-
stitutes an unfair labor practice.
The court further held that Section 10 (b) of the Act which forbids the entry of findings of
unfair labor practices based upon conduct occurring more than 6 months' period to the filing
and serving of charges did not apply to a charge with respect to such an illegal contract, for
as long as the contract, in violation of the Act, continued in force, a continuing offense was
being committed.
The undersigned finds that the contract existing between the Respondent Company and the
international as herein found was invalid ab intitio and therefore further finds the said con-
tract to be now violative of the Act.
B The administration of the contract
The Respondent Company is engaged in erecting a powerplant costing in excess of one
hundred million dollars at Joppa, Illinois.
Jack Garvin, manager of labor relations for the Respondent Company's operations, testified
that he negotiated the agreement between the Company and the Respondent International; that
he determines the Company's labor policy; that
We have never functioned under this agreement in respect to the so-called closed shop
aspect of the agreement. We have followed continuously a policy of hiring over at this
project and all others regardless of whether they were affiliated in the boilermakers
in this instance or any other union in other instances.
John M. Graney, the Respondent Company's labor relations manager, on the Joppa project,
during all times material herein, testified:
When Mr. Albright needs boilermakers, he would tell me he needed a certain number
for a certain shift. We would go through the files see if there were any available of
that source. We would see if we had any laid off that had stayed around the area, and
then all those failing I would call Mr. Dunn's office and tell him we needed some boiler-
makers.
This agreement, entered into this 5th day of Sept., 1950, shall remain in full force
and effect for one year and continue thereafter from year to year unless notice to
terminate or amend is given by either party to the other party at least sixty (60) days
prior to any anniversary date.
FOR THE CONTRACTOR FOR THE INTERNATIONAL BROTHERHOOD OF
BOILERMAKERS , IRON SHIP BUILDERS AND
HELPERS OF AMERICA
By /s/ F. C. Gardner By /s/ Chas. J. MacGowan
International President
Vice President
Title
5N. L. R. B . v, J. H. McGraw and Company and International Union of Operating Engineers,
A. F. L., 206 F. 2d 635 (C. A. 6).
EBASCO SERVICES INCORPORATED 635
Albright is the Company's generalboiler superintendent on the Joppa project. Dunn is business
agent for Respondent Local No. 363.
Graney further testified, he never inquired if an applicant for employment at Joppa ,was
a union or nonunion member" or whether he had been referred to the job by a union.
The parties stipulated with respect to certain "Working Rules " established by the Unions.6
With respect to these rules , which were published by the Unions , Graney testified:
A, As much as I would get out of it, as much as I had to I followed this. (Referring to
the published rules).
Q. How many did you have to?
A. Well, I'll give you an example of that if I can here. The hours, wages, and so forth,
they are pretty clear in here. Then there's a clause here that says all work coming
under the boilermakers jurisdiction will be assigned to boilermakers . In my discussion
with Mr. Connels what work comes under the boilermaker's jurisdiction.
Q. Those working rules have been what you followed during the time that you were
there on the job , is that right?
A. That's correct. The contract relations --those things affected the employer and the
union. The by-laws affecting the union and its member --no, I don't know if this thing
exists in this book or not , but they are not subject, we don't negotiate those.
Lawrence F. Dunn, business agent of Local No. 363, testified that when boilermakers were
needed at the Joppa project by the Respondent "they would notify my office, and some times
they would notify the foreman that they would need a certain amount of men." Dunn further
testified that in all cases where boilermakers were hired on the Joppa project the Respondent
Company first got "in touch" with him and that "I refer these people to the job," however,
Dunn maintained that he did not send applicants to the Joppa project with a "referral ship"
which he defined as follows:
Well, in my opinion a referral slip is a request for the men to be sent to work. I don't
know how you would define it. It's referring them to the job.
He testified that some, but not all, applicants were sent to the Joppa project with "a slip of
paper" which was not a referral slip. As to this document he testified:
The Witness : We don 't have no slip referring them to the job. We have a card with the
company 's name , the man's name , and what the man can do , whether he is a mechanic
or a welder.
Trial Examiner PLOST: Yes.
The Witness : Then I have my signature on the bottom.
Dunn also testified that " I don 't know of any one else that clears them [applicants] in"; and
that after he had furnished an applicant with a card stating "where the job was at, and who
the Forman was, and who the steward was and what company" then:
I sent these slips with these boys. If they gave them to the foreman, I don't know.
Conclusion as to the Administration of the Contract
Despite the denials of the Respondents that the contract was not adhered to; that employees
were not exclusively hired through the Unions; and that the Unions did not "refer" employees
to the Company , the undersigned is persuaded and finds that the entire record considered as
a whole discloses quite the contrary, and further finds on all the evidence that in reality the
Company abrogated to the Unions the right to hire employees to perform work claimed within
the Unions' jurisdiction, and is further persuaded and finds that such acts and conduct were
all pursuant to the illegal contract existing between the Respondents as herein found, which
the undersigned finds on the entire record to have been treated and administered as establish-
ing a closed shop.
6 The Working Rules were admitted as General Counsel's Exhibit No. 2A.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Referring to the McGraw case 7 the court found:
Section 8 ( a) (1) and (3) of the National Labor Relations Act, as amended by the Labor
Management Relations Act of 1947 , 29 U. S . C. A., Section 158 (a ) (1) and (3), provides
that it shall be an unfair labor practice for an employer to interfere with, restrain, or
coerce employees in the exercise of their rights to self-organization , under Section 7,
to bargain collectively through representatives of their own choosing , or to refrain
therefrom , "by discrimination in regard to hire or tenure of employment or any term
or condition of employment."
Section 8 (b) (2) and (1) (A) of the Act provides that it shall be an unfair labor practice
for a labor organization or its agents : to cause or attempt to cause the employer to
discriminate against the employee in violation of Section 8 (a) (3); and to restrain or
coerce employees in the exercise of their rights to self -organization under Section 7.
These sections of the Act are violated if an employer and a union execute , maintain,
or enforce a closed shop agreement . National Labor Relations Board v. Electric Vacuum
Cleaner Co., Inc ., 315 U . S. 685; National Labor Relations Board v. Lloyd A. Fry Roofing
Co., 193 F. 2d 324 (C. A. 9). Further , the prohibitions contained in these sections of the
Act are violated if the employer and the union arrange to agree to give union employees
priority in employment , whether through the device of requiring referral by the union, or
otherwise . National Labor Relations Board v. Whittenberg Construction Co., 200 F. 2d
157 (C . A. 6); National Labor Relations Board v. Jarka Corp ., of Philadelphia , 198 F. 2d
618 (C . A. 3); National Labor Relations Board v. G. McKee & Co., 196 F. 2d 636 (C. A. 5);
Red Star Express Lines v. National Labor Relations Board, 196 F. 2d 78 (C. A. 2).
The undersigned finds on the entire record considered as a whole that the contract between
the Respondents as herein found was administered by the Respondent Company and the Re-
spondent Unions in violation of the Act , more particularly Section 8 (a) (1), (2 ), and (3) and
8 (b) (1) (A ) and 8 (b) (2 ) thereof.
C. The discriminatory discharge of James E. Elsea
James E. Elsea , testified he was a charter member of Local No. 679; that he was employed
at the Joppa project by the Company in November 1952; that on December 19, he received
permission from Job Steward Tom West to be off. The length of the leave of absence granted
does not appear. It seems that it was customary for leave of absence to be granted by job
stewards.
On December 20 Elsea went to work on a job in Chattanooga , Tennessee . Elsea testified
that on Sunday , December 21, John Moore the acting steward on the Chattanooga job, came
to him and told him that A. A. Blevins the business agent of Local Union , 679, which is a
member of Lodge 57 , subordinate to the Respondent International , had just told him "that he
was going to blackball all of us that didn 't have a referral slip on the Job." 8
According to Elsea's undenied testimony , here set out:
When I heard he was going to blackball all of us that didn't have referrals I went out
to see why . When I came up, why , we just spoke as usual, you know. I said I heard that
you was going to blackball all of us that didn 't, that don't have referrals on this job."
I said , "Listen , Blevins , I'm over 300 miles from home working . I would like to be in
my home with my wife and children the same as you like to be with yours."
He said, " It don't matter. I said you are getting off of this job. I've got eight men
coming on this lob ." And I said , "Well, I 'll tell you one thing , you didn't want to give me
a referral to the job." He said , " No." And I said , "Well, if you don 't want to , that's all
right , but I'll be on this lob until that man right there , Mr. Weigel , stops my pay."
Elsea remained on the Chattanooga job until it was completed , December 27.
Elsea further testified , without contradiction , and credibly , that on January 2, 1953, he
returned to the Joppa project and reported to one Whirledge , the "pusher" who had formerly
assigned his work . Elsea testified:
7See footnote 5, supra
8 Moore and Herbert L Reynolds both testified without contraction that : ( a) Blevins sent
Reynolds to call Moore; and (b) told Moore that men without referrals would be "black balled."
EBASCO SERVICES INCORPORATED 637
Q. Now, then, what was your conversation with Mr. Whirledge?
A. I asked him, I said, "Am I still in your gang? " He said. "Yes, I recken you are,
you are still on my books."
Whirledge then assigned Elsea to a job. At about 10:30 a. m. Whirledge came to Elsea and
told him he had been asked by Julius Jacquot, the general foreman of boilermakers, (who was
known to the men as "Fish" and is so referred to in the record) if Elsea was "in the gang"
and upon receiving an affirmative reply had instructed Whirledge to "send him down I am
going to fire him," Elsea further testified:
I said, "When do you want me to go? " He said, "You can eat your dinner before you go."
He said, "And I want you to know right now that I do not have one thing to do with this,
none whatsoever . I hate to see you go, but," he said , " It is just one of them things.
Either you go or I have to go. I have a job just like you've got.".
Elsea then contacted Jacquot with whom he testified as holding the following conversation:
I said, "Did you send for me? Hesaid, "No, I didn't send for you." I said, "Somebody's
got their wires crossed here." I said, "Jim Whirledge sent me down, he said you was
going to fire me. " He said , "I never said no such a thing." I said, "Well--
He said--I started off, then. "Well, I will just go on back to work. So he looked back.
"Oh, yes, by the way, How long have you been off from work? " I said, "I left here last
Friday." "Yes, I believe I did want to see you too." He said, "I am going to have to
send you to Larry Dunn."
Elsea then pointed out that Dunn was in St. Louis and asked if a telephone call would suf-
fice; was told "I don't care how you get in contact with him but you sure got to get in contact
with him some way"; Upon this Elsea asked Jacquot "If I make it all right with him, is it
all right with you? " and was told by the General Foreman "if you make it all right with
him it don't matter to me."
To this point, Elsea's testimony was entirely uncontradicted. Business Agent Blevins had
been called by the General Counsel, but neither Respondent recalled him to deny Elsea's
testimony, nor were Whirledge or Jacquot called to testify. The undersigned credits Elsea's
testimony as above set out.
Elsea further testified that he talked to Dunn by long-distance telephone that afternoon and
again the following day. He testified:
Q. (By Mr. Kennedy) What did you say to Mr. Dunn?
A. I told Mr. Dunn I had to come to see him. He said, "What for? " I said "I don't
know. I have been off for several--" told him when I had been off. He said, "What's
wrong with them fellows down there? Christmas holidays is not over yet." I said,
"That's what they claim they got rid of me for." He said, "What is your phone number?
I'll call you right back." I gave him my phone number and waited all that afternoon; he
didn't call. The next morning pretty early around 8 or 8:30, it might have been 9 o'clock,
I called the office; nobody there. I called his residence and he said , "Elsea, the reason
I didn't call you back, I called down. The boys said that you had been on a non-union
Chattanooga and we don't tolerate that a bit. Nothing I can do for you." He hung up.
That's all.
The next morning, Saturday, January 3, ELsea returned to the project. In the hallway of the
Company's personnel office he met Lawrence Albright, the Respondent Company's general
superintendent for boiler work whom he asked to send for Tom West, the steward, and
Jacquot. The following conversation then took place according to Elsea's testimony:
What I said, here is what I said to Mr. Albright when I asked him to send me Fish and
Tom West. He said, "May I ask the reason why? " I said, "You may. He said, "What is
your name?" I said, "Elsea."
"Are you the man they tried to get me to fire yesterday? " I said, "fired? " He said,
"Yes, you are the man they wanted me to fire yesterday and I couldn't fire you without
337593 0 - 55 - 42
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some reason." He said, "You can't go back to that job, Elsea, they will kill you just as
sure as you go out there . They done tried to kill me," he said , " I just can't let you go
on that job at all. The best thing you can do is I'll mark on your termination here sub-
ject to rehiring, and for God's sake, don't let them know it."
So he wrote this out, you know, wrote this slip out and I told him, I said, "I'm not
quitting. Don't get that in your head that I am quitting or resigning." "I'm just fixing
this out like this. You will be subject to coming back then any time." And I have never
been able to get back on. When he took the check with my slip, that was all. I've never
been able to get back up to May 22 of '53. 9
The "slip referred to is a "Notice of Release." It states that Elsea "resigned" and also
is marked to show him eligible for rehiring. iU
Elsea testified that he did not read the "Release," merely "stuck it in my pocket."
Business Agent Dunn testified he had no recollection of having received any telephone can
from Elsea "about the first of the year" but that Elsea called him twice in May 1953 and that
"the calls weren't over two weeks apart." Dunn testified:
Q. When were those two calls?
A. I imagine around in May, one was maybe in the middle or first of May, middle of
May, something like that. I spoke to him twice. One time he was in Ohio when he called
in. He wasn't in Chattanooga. The other time I don't recall whether he was in Chat-
tanooga or where he was at.
Dunn testified that the second call was from Ohio, related to a grievance, and he told Elsea
"to come in and talk it over with me." He further testified:
Q. What did he say to that:
A. Be glad to.
Q. Did he come in and talk to you?
A. Certainly.
As to the first call, Dunn testified Elsea asked about a job , and was told there was none at
the time. As to the date of the call Dunn testified:
Well, it was before I received this last call from Ohio, I think it was Ohio, I'm not sure
whether it was Ohio . I know it was some place in the east that he called me from.
From his observation of the witnesses, the entire record considered as a whole , and further
because Elsea impressed the undersigned as an honest and forthright witness while Dunn
did not so impress the undersigned but seemed not only seeking to color his testimony but
to be concealing facts, the undersigned credits Elsea and finds that on January 2 and 3, 1953,
9 There is nothing in the record to show that Elsea applied for reinstatement prior to May
4, 1953, when his attorney made such an application by letter. Elsea was rehired on this
application and returned to work May 22, 1953.
w The release reads:
NOTICE OF RELEASE
NAME J. E. Elsea
EMPLOYEE HAS WORKED No HOURS TODAY
REASON FOR DISCHARGE: Resigned
SUBJECT TO REHIRE: YES. X NO
Emp. 3514
No.
DATE Jan. 3 1953
L. A. Albright
APPROVED BY
onstruction Superintendent
CHECK NUMBER 146826 IN THE AMOUNT OF $17.14
EBASCO SERVICES INCORPORATED 639
Elsea spoke to Dunn by long-distance telephone and that on January 3, during the second
telephone call, as herein found to have taken place, Dunn told Elsea in effect that he had been
discharged because he "had been on a nonunion job in Chattanooga."
The respondent Company's general boiler superintendent, Albright , testified that he filled
out Elsea 's "Release ," in his own office on the job; that this was a "routine matter" and
"common practice at our place "; that he did not discharge Elsea and "don't remember that
they" (the Unions ) asked for Elsea's discharge . Albright testified:
To the best I can remember , he was brought in to me by Fish and he said, "Here's a
man that wants his time."
Albright further testified that Jacquot did not tell him that Elsea was being discharged and
that "as far as I know he resigned."
On cross-examination Albright testified:
Q. Now , then, you talked to Mr . Elsea before you gave him this release that has been
received in evidence as General Counsel 's Exhibit No. 5. What is your recollection as to
what you said to Mr. Elsea and what he said to you?
A. I can 't say exactly . He talked to me, so many men come and go , I couldn't say
exactly what I said and didn 't say . The signing of that release to me was a routine
matter and different men would come in for time , some would quit , some would be
brought in by the steward and say this man is quitting , some would be brought in by the
general foreman and say this man is quitting , he wants his time, and that happens so
frequently--
When pressed for a definite answer Albright testified:
Q. (By Mr. Kennedy) What is your recollection as to what your conversation with
Mr. Elsea was that morning?
A. I probably asked him why he was quitting.
Q. I don 't want what probably was said, I want to know what you now recall as to
what your conversation with Mr. Elsea was on the morning that you made out the docu-
ment received in evidence as General Counsel 's Exhibit 5.
A. My only recollection as far as he was concerned would be the same as it would be
for any man that was quitting. "Why are you quitting? "
Q. (By Trial Examiner Plost) Do you remember saying that to him?
A. No, I don't.
Albright recalled meeting Elsea in the hallway of the administration building on the day
of his separation, and recalled speaking to him. With respect to this conversation he testified:
Q. (By Trial Examiner ) Do you remember saying anything to him?
A. Yes, we did, I remember , to the best of my knowledge , seeing him, seeing him
up in the Administration Building after he had this notice where he was waiting to get
his money , and we exchanged a few words up in that building there . (Emphasis supplied.)
Q. I see.
A. At that time , I believe, the best I can remember , I asked hum why he was quitting
and he said something about having been on the job or in St. Louis some place over the
Christmas holidays and that some of the boys on the job didn't like it and he was leaving.
Albright then testified that he had no present recollection of any conversation with Elsea
at the time he filled out Elsea's "Release" and gave it to him.
Conclusion as to Albright's Testimony
As Albright testified he had no recollection of any conversation with Elsea at the time the
"Release" was filled out and further testified that his description of the matter, as to time
or parties present , and that his account of the actual writing of the "Release" was merely a
recital of the "common practice at our place" and further , inasmuch as Albright remembers
meeting and speaking to Elsea in the hallway of the personnel office , his testimony on the
whole , and in the light of the entire record, serves to corroborate rather than impeach Elsea,
although nothing of the actual conversation was recalled by the witness.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the entire record and from his observation of the witnesses the undersigned is con-
vinced that Elsea 's account of his meeting and conversation with Albright on January 3, 1953,
in the hallway of the Company 's personnel office represents an accurate version thereof
and therefore finds that on January 3, in the conversation , as herein found to have been held
by the two men, Albright told Elsea in effect that the Unions had demanded that he discharge
Elsea . The undersigned further finds , despite the wording of the "Release " given Elsea,
that on January 3, 1953, Albright discharged Elsea from his employment of the Company's
Joppa project.
Conclusion
It has been found herein that the contract entered into and existing between the Respondents
as well as the administration thereof is illegal.
It has been found that the Respondent Company discharged James E. Elsea on January 3,
1953.
In view of the finding that Elsea was told by Business Agent Blevins that he would be
"black balled" for working without a referral at Chattanooga , and told by Dunn on January 3,
that "nothing could be done " for him because he had worked on a nonunion job, coupled with
the finding that Albright told Elsea that the Unions had requested his discharge makes it
clearly incumbent on the undersigned to draw the obvious inference that the Unions caused the
Company to discharge Elsea.
Were the contract between the Respondent Unions and the Company entirely legal, the
Unions could only effect the discharge of an employee for nonpayment of dues.
Local Union No. 363 could legally discipline Elsea, expell him from membership , or fine
tiim, but it could not under the facts herein cause his discharge because he violated union
rules as to employment.
The undersigned finds that by entering into, maintaining , continuing in effect and enforcing
the illegal contract , as found herein , and by adhering to the Union 's working rules, and by
the discharge of James E. Elsea on the demand of the Unions , the Respondent Company has
engaged in conduct violative of Section 8 (a) (1) (2 ) and (3) of the Act. By engaging in and
causing the Respondent Company to engage in such conduct and by interfering , coercing,
and restraining , employees of the Respondent Company in the exercise of rights guaranteed
in Section 7 of the Act the Respondent Unions , International and Local 363, have violated
Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
That by the acts and conduct of Business Representative Blevms , in threatening Elsea
with loss of employment , Lodge 57 and Local 679 engaged in conduct violative of 8 (b) (1)
(A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of all the Respondents set forth in section III, above , occurring in con-
nection with operations described in section I, above, have a close , intimate , and substantial
relation to trade, traffic , and commerce among the several States , and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent Company and the Unions have engaged in un-
fair labor practices , it will be recommended that each of them cease and desist therefrom
and take certain affirmative action , designed to effectuate the policies of the Act.
It has been found that the Respondent Company illegally reached an agreement or under-
standing with the Unions under which certain employees had to be cleared by them for
employment , and thereby interfered with , restrained , and coerced employees in their exercise
of the rights guaranteed by the Act and thus contributed assistance to the Respondent Unions
and discriminated in regard to thehireand tenure of James E . Elsea , and thus encourage mem-
bership in Local 363. It will be recommended therefore, that the Respondent Company with-
draw all recognition from the International and its subordinate Local Unions and cease giving
effect to its 1950 agreement with the Internationalor to any renewal or extension of the agree-
ment herein found to be unlawful and invalid , unless and until the International and its Local
Unions shall have been certified, by the Board, as the exclusive representative of the Com-
pany's employees. Nothing in this recommendation, however, should be construed to require
the Respondent Company to vary or abandon those wage, hour, seniority, or other substantive
EBASCO SERVICES INCORPORATED 641
features of the relationship between it and its employees established pursuant to that agree-
ment. It will also be recommended that the Respondent Company refrain hereafter from enter-
ing into , renewing, or enforcing any arrangement , understanding or commitment , under which
membership in the Respondent Unions or clearance by them would be required as a condition
of employment either as a matter of contract or in fact, unless reached in a manner permis-
sible under the provisos of the Act. It will be recommended that the Respondent Company and
its officers , agents and representatives , cease and desist from discrimination against em-
ployees, as a group or individually, in any like or related manner, with respect to their hire,
employment tenure, or any term or condition of their employment, except to the extent
permitted under Section 8 (a) (3) of the Act.
It has also been found, specifically, in this report, that the Respondent Company, at the re-
quest and demand of Local 363, International Brotherhood of Boilermakers, Iron Shipbuilders
and Helpers of America, AFL discharged James E. Elsea, thereby discriminating with respect
to his hire and tenure of employment and other terms and conditions thereof, it shall, there-
fore, be further recommended that the Respondent Company cease and desist from any en-
couragement of membership in Local Union 363 by discharging or otherwise discriminating
in the hire or tenure of employment of any of its employees at the illegal request or demand
of Local 363, the International, or any of its subordinate Locals or Lodges.
Since the record discloses that Elsea has been rehired by the Company no recommendation
that he be reinstated need be made, however, since it has been found that Local 363, the
International, and the Company are jointly and severally responsible for his discriminatory
discharge, back pay, if any, shall be tolled from the date or rehiring which is found to be
May 22, 1953.
It shall be further recommended that the Respondent Company, the Respondent Inter-
national, and its subordinate Local 363, jointly and severally make James E. Elsea whole
for any loss of pay suffered by reason of the discrimination against him, by payment to him
of a sum of money equal to that which he normally would have earned from January 3, to
May 22, 1953 , less his net earnings during this period . Back pay shall be computed in
accordance with the formula stated in F. W. Woolworth Company. 90 NLRB 289.
Since it has likewise been found that District Lodge 57 and its component member Local
No. 679 have by the conduct of their agent, A. A. Blevens, engaged in conduct violative of
Section 8 (b) (1) (A) of the Act it will be recommended that said Lodge 57 and Local No. 679
cease and desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the case, the
undersigned makes the following:
CONCLUSIONS OF LAW
1. The operations of Ebasco Services , Incorporated , constitute trade , traffic , and commerce
among the several States within the meaning of Section 2 (6) and (7) of the Act.
2. The Respondent Unions, International Brotherhood of Boilermakers, Iron Shipbuilders
and Helpers of America, AFL; District Lodge 57 International Brotherhood of Boilermakers,
Iron Shipbuilders and Helpers of America, AFL; Local 679, International Brotherhood of
Boilermakers, Iron Shipbuilders and Helpers of America, AFL; and Local 363, Inter-
national Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America, AFL,
are labor organizations within the meaning of Section 2 (5) of the Act.
3. By its agreement, understanding, or commitment with the Respondent International
Union, which in reality required all of the boilermaker employees at its Joppa project
to be cleared by Local 363 for employment; and by the discharge of Elsea, at the request
of the Respondent Local 363 pursuant to the illegal agreement , understanding , or commit-
ment, the Respondent Company interfered with, restrained, and coerced its employees in
their exercise of the rights guaranteed in Section 7 of the Act, contributed assistance and
support to the Respondent Unions, and discriminated with respect to the hire, employment
tenure, and terms and conditions of employment of its employees to encourage membership
in the Respondent Unions. The Respondent Company thereby engaged and has continued to
engage in unfair labor practices within the meaning of Section 8 (a) (1), (2), and (3) of the Act.
4. By its entrance into said illegal agreement , understanding , or commitment with the
Respondent Company, and by causing the Respondent Company to give effect to that agree-
ment, and to discharge Elsea, the Respondents International and Local 363 restrained and
coerced employees in their exercise of the rights guaranteed in Section 7 of the Act, and
attempted to cause , and did cause the Respondent Company to discriminate against its
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in order to encourage membership in a labor organization, and thus to commit
an unfair labor practice within the meaning of Section 8 (a) (3) of the Act, the Respondent
Unions, meaning the International and Local 363, have engaged in unfair labor practices
within the meaning of Section 8 (b) (1) (A) and 8 (b) (2) of the Act.
5. By interfering with, restraining, and coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act, the Respondents District Lodge 57 and Local 679 have
engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication
MUTUAL NEWSPAPER PUBLISHING COMPANY, et al., and
OFFICE EMPLOYEES INTERNATIONAL UNION, LOCAL
NO. 30, AFL, Petitioner. Case No. 21-RC-3195. December
30, 1953
DECISION AND ORDER
Upon a petition duly filed, a hearing was held before a
hearing officer of the National Labor Relations Board. The
hearing officer ' s rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
The four enterprises involved in this proceeding are The
Mutual Newspaper Publishing Company, d/b/a Los Angeles
Daily Journal and the Los Angeles News; The Independent
Review Company; Telford Work, d/b/a City News Service
of Los Angeles; and The Los Angeles Newspaper Service
Bureau, Inc. The Mutual Publishing Company publishes a
daily newspaper which specializes in news of interest to
the legal profession and legal advertising . It also does a
small amount of commercial printing and prints under con-
tract The Independent Review, a weekly newspaper also
specializing in legal news and legal advertising . The City
News Service is engaged in the collection and dissemination
of news pertaining to the legal profession in Los Angeles
County on behalf of 45 newspapers in Los Angeles County.
The Los Angeles Newspaper Service Bureau is a local non-
profit advertising agency, all of whose stockholders are
newspapers located in southern California . It solicits legal
advertising on behalf of its stockholders.
The 3 corporations involved have common ownership and
common officers and directors. Mr. Telford Work, pro-
prietor of the fourth enterprise , owns no stock in any of
the corporations, but is secretary-treasurer of each,gen-
eral manager of the largest, the Mutual Newspaper Publishing
Company, and draws salaries from 2 of the 3. The 4 compa-
nies are housed in the same building and there is some di-
vision of employees' time between companies. For the purpose
107 NLRB No. 127.