Essex County District Council of Carpenters Etc.

National Labor Relations Board - Board Decisions

Mar 27, 1963

141 N.L.R.B. 858 (N.L.R.B. 1963)

858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Essex County and Vicinity District Council of Carpenters
and Millwrights, United Brotherhood of Carpenters and
Joiners of America , AFL-CIO and The Associated Contractors
of Essex County, Inc. Case No. 22-CC-174(2). March 27, 1963
DECISION AND ORDER
On December 19, 1962, Trial Examiner William F. Scharnikow
issued his Intermediate Report in the above-entitled, proceeding, find-
ing that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the attached
Intermediate Report. Thereafter, the Respondent and the General
Counsel filed exceptions to the Intermediate Report and 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 Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report and the entire record in the case, including the
exceptions and briefs, and hereby adopts the Trial Examiner's find-
ings, conclusions, and recommendations, as modified herein.'
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 The Essex County and Vicinity
District Council of Carpenters and millwrights, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, its officers, agents,
representatives, successors, and assigns, shall:
1. Cease and desist from :
(a) Engaging in, or inducing or encouraging employees of any
employer-member of the Associated Contractors of Essex County,
Inc. (herein called the Association), or any other employer, to engage
in a strike, or threatening, coercing, or restraining any such employer,
where in either case an object thereof is to force or require the As-
sociation or any such employer to enter into an agreement which is
prohibited by Section 8(e) of the Act.
1 As we believe that the "nonunion condition" provisions in the contracts with Respond-
ent, executed by Association members on and after July 23, 1962 , were the fruits of Re-
spondent 's unfair labor practices found herein , we shall , in order to remedy fully Respond-
ent's violation of the Act , order Respondent to cease and desist from applying or enforc-
ing the "nonunion condition " provisions in such contracts Our Order shall not , of course,
have application to the contracts with Respondent signed in June 1962 , before the date
of the unfair labor practices found.
141 NLRB No. 80.
ESSEX COUNTY DISTRICT COUNCIL OF CARPENTERS, ETC. 859
(b) Enforcing, applying, or attempting to enforce or apply,
any "nonunion condition" provision in the contracts executed by
association-members in consequence of Respondent's unfair labor
practices found herein, provided, however, that nothing in this Order
shall preclude the voluntary execution of contracts with such
provisions.
2. Take the following affirmative action which it is found will
effectuate the policies of the Act :
(a) Post at the Respondent's business offices and meeting halls,
copies of the attached notice marked "Appendix." 2 Copies of said
notice, to be furnished by the Regional Director for the Twenty-second
Region, shall, after being duly signed by the authorized representa-
tive of the Respondent, be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for a period of 60 consecutive
days thereafter, in conspicuous places, including all places where
notices to its members are customarily posted. Reasonable steps shall
be taken to insure that the notices are not altered, defaced, or covered
by any other material.
(b) Sign and mail sufficient copies of said notice to the Regional
Director for the Twenty-second Region for posting by the constituent
employer-members of the Association, said employers being willing,
at all locations where notices to their employees are customarily
posted.
(c) Notify the Regional Director for the Twenty-second Region,
in writing, within 10 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
2 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."
APPENDIX
NOTICE TO ALL OUR MEMBERS AND ALL EMPLOYEES OF THE
EMPLOYER-MEMBERS OF THE ASSOCIATED CONTRACTORS OF ESSEX
COUNTY, INC.
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify you that:
WE WILL NOT engage, or induce or encourage employees of
any employer-member of The Associated Contractors of Essex
County, Inc. (herein called the Association), or any other
employer, to engage in a strike, nor will we threaten, coerce, or
restrain any such employer, where in either case an object thereof
is to force or require said employer to enter into any agreement
which is prohibited by Section 8(e).
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT enforce, apply, or attempt to enforce or apply,
,any "nonunion condition" provision in the contracts with us
executed by Association members in consequence of our threats
to strike and of our strike of July 23, 1962.
THE ESSEX COUNTY AND VICINITY DISTRICT
COUNCIL OF CARPENTERS AND MILLWRIGHTS,
UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by
any other material.
Employees may communicate directly with the Board's Regional
Office, 614 National Newark Building, 744 Broad Street, Newark 2,
New Jersey, Telephone No. Market 4-6151, if they have any question
concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint issued by the Regional Director in the present case 1 alleges,
that, on and since July 16, 1962, the Respondent labor organization, The Essex
County and Vicinity District Council of Carpenters and Millwrights, United Brother-
hood of Carpenters and Joiners of America, AFL-CIO, has committed unfair labor
practices affecting commerce within the meaning of Sections 8(b) (4) (i) and (ii) (A)
and 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136 and 73 Stat. 519
(herein called the Act), by threatening and then causing a strike of the employees
of the constituent employer-members of The Associated Contractors of Essex County,
Inc. (herein called the Association), with an object of forcing and requiring the As-
sociation and its employer-members to enter into a contract or agreement containing
a clause prohibited by Section 8(e) of the Act .2
1 The complaint was issued on July 25, 1962, upon the basis of a charge filed by The
Associated Contractors of Essex County, Inc., on June 4, 1962. The charge and the com-
plaint were served upon the Respondent Union on June 4 and July 25, 1962, respectively
2 The relevant language of Section 8(b) (4) and '8(e) is the following,
SEC. 8. (b) It shall be an unfair labor practice for a labor organization or Its
agents-
s • • • • s •
(4) (1) to engage in . . . a strike . . or (ii) to threaten, coerce, or restrain any
person engaged in commerce or In an industry affecting commerce, where in either
case an object thereof Is:
(A) forcing or requiring any employer . . to enter into any agreement which is
prohibited by section 8(e)
i t 1 a i a •
SEC 8. (e) It shall be an unfair labor practice for any labor organization and any
employer to enter into any contract or agreement, express or implied, whereby such
employer ceases or refrains or agrees to cease or refrain from handling, using, sell-
ing, transporting or otherwise dealing In any of the products of any other employer,
or to cease doing business with any other person, and any contract or agreement
entered Into heretofore or hereafter containing such an agreement shall be to such
extent unenforcible and void: Provided, That nothing in this subsection (e) shall
apply to an agreement between a labor organization and an employer In the con-
struction industry relating to the contracting or subcontracting of work to be done
at the site of the construction, alteration, painting, or repair of a building, structure,
or other work ... .
ESSEX COUNTY DISTRICT COUNCIL OF CARPENTERS, ETC. 861
In its answer, the Respondent generally denies the commission of the unfair labor
practices alleged in the complaint. By way of further specific defense, it also asserts
in substance that: (1) the clause, which the complaint asserts is prohibited by Sec-
tion 8(e) of the Act, is "a valid and legal provision"; (2) on or about June 20,
1962, the Association and the Respondent "entered into a valid and binding contract"
containing the clause in question; (3) the Association is "estopped" from any chal-
lenge of the legality of the clause since the clause was part of a contract between
the Association and the Respondent which expired on May 31, 1962, and, for at least
10 years, the Association had insisted upon its observance for the benefit and ad-
vantages which it obtained therefrom; (4) the legality or illegality of the clause is
immaterial since the parties agreed that any illegal provision of their contract should
be ineffective; and (5) (as set forth in charges filed by the Respondent with the
Regional Direction on July 27, 1962) it was the Association which committed unfair
labor practices within the meaning of Section 8(a)(5) of the Act by refusing to
bargain with the Respondent in good faith and thus created the situation giving rise
to the present case, since, on or about June 1, 1962, and during the course of negotia-
tions for a contract to succeed the one which expired the preceding day, the Associa-
tion, expecting a strike on economic issues, presented to the Respondent for the first
time a demand to delete the hitherto undisputed clause from their agreement so that,
when the strike occurred, the Association, by filing charges under Section 8(e) and
availing itself of the Board's processes against the Respondent, might force their em-
ployees back to work.
Pursuant to Section 10(1) of the Act, the Regional Director petitioned the United
States District Court for the District of New Jersey for a preliminary injunction of
the Respondent's continuance of its alleged unfair labor practices pending the Board's
final disposition of the case in the present proceeding. On August 16, 1962, United
States District Judge Reynier J. Wortendyke, Jr., denied the Regional Director's
petition, concluding "as a matter of law" that the Respondent had not committed the
unfair labor practices with which it had been charged. (John Cuneo v. The Essex
County and Vicinity District Council of Carpenters and Millwrights, United Brother-
hood of Carpenters & Joiners of America, AFL-CIO, 50 LRRM 2979). According
to Judge Wortendyke's opinion, the proposed contractual provision for which the
Respondent struck the Association's members on July 23, 1962, was not such a pro-
vision as is forbidden by Section 8(e) of the Act, because (1) its language did not
on its face constitute a "hot cargo" clause; and (2) in any event, the first proviso to
Section 8(e) excludes from the general prohibition of that section, agreements
entered into by unions and employers in the construction industry. In reaching his
conclusion in part upon the latter ground, Judge Wortendyke considered and dis-
agreed with the Board's recent ruling in the Colson and Stevens case,3 that, notwith-
standing the proviso to Section 8(e), a strike by a union to coerce an employer in the
construction industry to execute an agreement otherwise falling within the inter-
diction of Section 8(e), is an unfair labor practice within the meaning of Section
8(b) (4) (i) and (ii) (A) of the Act.
Pursuant to notice, a hearing upon the complaint and answer in the case now before
the Board, was held in Newark, New Jersey, on September 10, 11, 12, and 13, 1962,
before Trial Examiner William F. Scharnikow. The General Counsel, the Respond-
ent, and the Association appeared by counsel and were afforded full opportunity
to be heard, to examine, and cross-examine witnesses, and to introduce evidence
bearing upon the issues.
At the beginning of the hearing, the Respondent moved to supplement its answer
by pleading the dismissal by the district court of the Regional Director's petition for a
preliminary injunction, as res judicata and dispositive of the issues in the present case.
On the General Counsel's objection, I denied this motion on the ground that the
defense which the Respondent sought to raise was insufficient in law.4
The Respondent thereupon made motions (1) to consolidate the present proceed-
ings with the proceedings based upon a charge filed by it with the Regional Director in
Case No 22-CA-2520, in which the Respondent had alleged that the Association had
refused to bargain with it and had thereby committed unfair labor practices within
the meaning of Section 8(a)(5) of the Act, and (2) in the alternative, to postpone
the hearing in the present case until the Respondent had an opportunity to appeal to
the General Counsel for a reversal of the Regional Director's refusal to issue a com-
plaint in Case No. 22-CA-2520. Upon the General Counsel's objection, I also denied
3 Construction, Production & Maintenance Laborers Union Local 383, AFL-CIO; and
United Brotherhood of Carpenters and Joiners of America, Local 1089, API-CIO (Colson
and Stevens Construction Co., Inc.), 137 NLRB 1650
4 N L R B. v. Denver Building and Construction Trades Council, et al. (Gould &
Preisner), 341 US. 675, 681-683.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these alternative motions of the Respondent, noting however, that, under my ruling,
all evidence as to the Respondent's object or objects in the strike of July 23, 1962,
would be received, including such evidence as to the Association's conduct as might
appear to be relevant to this issue.
At the conclusion of the hearing, the parties waived oral argument. Since the
close of the hearing, I have received and considered their briefs.
Upon the entire record in the case and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESSES OF THE MEMBERS OF THE ASSOCIATION
The Associated Contractors of Essex County, Inc., is an association of employers
whose members are engaged in the building and construction industry in Essex
County, and elsewhere in the State of New Jersey. For many years, the Association
has been authorized by its employer-members to conduct collective-bargaining negotia-
tions on their behalf and to enter into collective-bargaining agreements covering their
respective employees and has accordingly negotiated collective-bargaining agree-
ments with the Respondent. During the year preceding the issuance of the com-
plaint, these employer-members, all of whose places of business are located in the
State of New Jersey, have performed services of a value in excess of $1,000,000 in
States of the United States other than the State of New Jersey.
I find, as the Respondent conceded at the hearing, that the members of the Asso-
ciation are employers engaged in commerce within the meaning of the Act.
H. THE RESPONDENT LABOR ORGANIZATION
The Essex County and Vicinity District Council of Carpenters and Millwrights,
United Brotherhood of Carpenters & Joiners of America , AFL-CIO, is a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The controversial "nonunion condition clause
The broad question presented by this case is whether the Respondent committed
unfair labor practices within the meaning of the Act, by attempting to coerce the
Association, by strike and threat of strike, to enter into an agreement renewing the
"nonunion condition" provision of article XVIII of a contract between them which
expired on May 31, 1962. The full language of article XVIII, with emphasis supplied
to set out the particular language to which the Association objected and upon which
the Respondent admittedly insisted, was the following:
ARTICLE XVIII-STRIKES, LOCKOUTS AND ARBITRATION
SECTION 1. All disputes or complaints of whatsoever character, except juris-
dictional dispute covered in Article XVII, if not adjusted by the subordinates
involved, shall be referred to a joint committee of the Union and the Association
for settlement. The decision of such committee shall be final and binding. If
such committee is unable to agree on the subject in dispute, it shall, as soon
as possible, be arbitrated by an Arbitrator designated by the New Jersey State
Board of Mediation and the decision of the Arbitrator shall be final and binding.
Cost of the Arbitrator shall be equally shared by the parties. Either party
may request such arbitration without resort to the aforesaid Joint Committee.
No cessation of work shall take place for any reason except for non-union
condition or failure to make required payments to the Pension Fund and/or
Welfare Fund. A non-union condition shall prevail when employees are em-
ployed without a collective bargaining agreement on any construction work
which is normally performed by employees working under a collective bargaining
agreement with a Union affiliated with the Building Trades Department of the
AFL-CIO. In such event it shall not be deemed a violation of this Agreement
for employees hereunder to individually refuse to work on the job site where
such non-union condition exists. To the extent legal, the Union may request
employees hereunder to leave such jobs.
SEC. 2. Should any Employer violate this Agreement, such violation shall be
immediately submitted to the Joint Committee or the Arbitrator above referred
to. Said Committee shall meet within 48 hours and proceed forthwith to make
a thorough investigation, consider all the facts and evidence presented and there-
upon to render a decision. If the Employer is found to have violated this Agree-
ment by the Joint Committee or by the Arbitrator, then such Joint Committee
ESSEX COUNTY DISTRICT COUNCIL OF CARPENTERS, ETC. 869,
or the Arbitrator, as the case may be, shall order an appropriate adjustment and
the Association shall, to the extent and in the manner permitted by applicable
law, designate the employees for the work covered hereunder, on all jobs of the
Employer for one (1) year. Any violation of this section shall render this
Agreement void as to the Employer violating same.
In defense of its insistence upon this "non-union condition" provision, the Respond-
ent relies in part upon the language therein which would permit the Respondent
to request a work stoppage only "to the extent legal," and also upon the following
additional, general provision as to legality, which appeared in the previous contract
as article XIX and which, by agreement of the parties, was again to be incorporated
in the new contract:
Nothing in this Agreement is intended to be in conflict with any law as same
may be effective from time to time. If such conflict be found, then the Law
shall prevail and the Agreement shall be deemed amended to the extent neces-
sary to conform with the Law. The remainder of this Agreement shall be in
full force and effect.
B. The early negotiations and the strike from June 4 to June 20
In April 1962 the Association and the Respondent began negotiating the terms
of the new master contract which was to supersede their expiring contract on June 1,
1962. At the outset, they exchanged proposals for specific contractual changes, none
of which related to article XVIII of the expiring contract. They also agreed that they
would bargain on these matters without the appearance of their lawyers in the
bargaining session. Chairman John Becker of the Association, however, informed
the Respondent's negotiators that the Association "wished the lawyers to draw the
agreement up at the end and if there were anything illegal in it, they would straighten
it out." In the four or five bargaining meetings held up to and including May 31,
the negotiators discussed and settled all but three of the issues raised by their cross-
proposals. Still at issue were the Respondent's proposal for an 80 cents general
wage increase (as compared with a 50-cent offer made by the Association), and
the Respondent's further proposals of a vacation fund and a wage increase for
foremen (both of whom the Association had rejected). In this posture of the nego-
tiations, the Respondent agreed to extend the existing contract for 1 day, to permit
the Association to discuss the negotiations with the contractors who were its members.
On the following day (Friday, June 1), the Association's bargaining committee
consulted and received instructions from the Association's members, and then met
again with the Respondent's bargaining committee. In the meeting with the Respond-
ent's committee, the provisions of the expiring contract were read, clause by clause,
as the basis for discussion. The Association confirmed its counteroffer of a 50-cent
general wage increase and its rejection of the Respondent's requests for a vacation
fund and a wage increase for the foremen. In addition, the Association requested
a "management rights" clause. Finally, pursuant to the instructions received from
its members at the meeting earlier that day, the Association told the Respondent for
the first time that it wanted to exclude from their coming contract, the language of
the "nonunion condition" provision of article XVIII of their previous contract.
But the Respondent insisted that the provision of article XVIII be retained. In
voicing the Respondent's objection to the deletion of the "nonunion condition"
provision, Business Representative William Purcell told the Association's representa-
tives: "By you bringing up this point now, you want us to work alongside of non-
union people and people we don't recognize." To which, Secretary Paul Brienza of
the Association replied, "That's just the point we are objecting to." And at this point,
the bargaining meeting of June 1 broke up, with no agreement on any of the matters
still at issue.
The Respondent's officials thereupon informed its stewards that no agreement had
been reached and that without an agreement, the men should not work. As a result,
the Respondent's members who were employed as carpenters by the Association's
members did not report to work on Monday, June 4, the next working day. The
first of two strikes against the Association's members thus began on June 4, prompted
the Association to file the charge in this case on the same day, and lasted until
June 20.
At the instance of the president of the Respondent's International, with whom
the Association's committee conferred in Washington on June 5 about the strike in-
cluding its involvement of the "nonunion condition" issue, International Representa-
tive Walter Rajoppy held meetings with the Association's and the Respondent's
negotiators on June 11 and again on June 19. In neither of these meetings did the
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties consider or discuss the "nonunion condition " issue, although Chairman John
Becker of the Association attempted to raise the problem at the beginning of each
of the meetings. At the June 11 meeting , at which the Association's but not the
Respondent's attorney appeared, Chairman Brodkin of the Association and Business
Representative Flaherty objected to taking up this "legal point" in the absence of the
Respondent's attorney who was unavailable. Rejoppy then said, "Let's continue the
meeting because we are trying to get the men back to work. Let's just [discuss] .
the economic issues only ... and see whether we can come to any decision." And
when Becker again sought to bring up the "nonunion condition" issue at the June 19
meeting, from which both attorneys had absented themselves at Rajoppy's request,
Rajoppy again limited the negotiators to a consideration of the economic issues.
Apparently, nothing was settled at the June 11 meeting, but at the June 19 meeting,
which began at 2 p in. and lasted until early in the morning of June 20, the negotia-
tors agreed upon a 65-cent wage increase , a raise for the foremen, and a vacation
fund, in short, upon all the outstanding economic issues Each side, upon being
asked by the other, said there was nothing else it "would like to bring up at this
time." Chairman Becker, for the Association, remarked, "It looks like we have
come to an agreement, let's get out of here. It's too late. Let the lawyers work the
rest of it out." While the Association's negotiators waited, the Respondent's Council
met separately and ratified the agreements reached by their bargaining committee
upon assurance (in accordance with what Chairman Brodkin testified was his belief)
that the "nonunion condition" clause would be included in the new contract. The
Respondent's bargaining committee returned to the Association's negotiators and
Chairman Brodkin, for the Respondent, announced that the proposals had been "ac-
cepted by the Council, that the men would return to work tomorrow and the formali-
ties of signing the agreement would be worked out by the attorneys."
Before the negotiators separated early in the morning on June 20, Paul Brienza,
the Association's secretary, telephoned to the newspapers that the strike had ended
and that the men were returning to work, and had President Edward Galway come
to the telephone to confirm this announcement. According to Galway, at Brienza's
request, he confirmed Brienza's statement that "the strike was concluded and that
we had reached an agreement." According to Brienza , he merely had Galway con-
firm his report to the newspapers that Respondent had accepted 65 cents and would
return to work but did not state that all matters in dispute had been settled.
As a result of the meeting of June 19 and 20, the Respondent instructed its
members to return to work and the first strike which began on June 4 ended on the
morning of June 20.
C. Further negotiations and the strike of July 23
On June 22, Joseph Dunn, the Respondent's attorney, forwarded to the Association
"a short form agreement," stating in his letter to the Association that "It is my
understanding that a full-fledged agreement will be devised and agreed upon between
the parties to incorporate the short form." The short form thus submitted by the
Respondent merely set forth the new economic terms to which the negotiators had
agreed, and by otherwise extending the old contract until May 31, 1964, provided
that "all other terms and conditions [of the old contract] shall continue in full force
and effect .
On receipt of this short form of agreement, the Association's committee directed
its attorney "to draw up a full contract and not a short form of contract." Pursuant to
his instructions, the Association's attorney drafted, and forwarded to the Respondent,
a full form of agreement based upon the language of the old contract. In this draft,
the new economic provisions were inserted within the framework of the old contract
and all of the other old provisions were repeated verbatim except the "nonunion
condition" provision which was omitted. The draft provided that the new agreement
was to be effective as of June 20, 1962, instead of being retroactive to June 1. It
should also be noted that the draft did not contain any "management rights" clause
such as had been requested by the Association at the bargaining meeting on June 1.
On receipt of the Association's draft, Edward Galway, the Respondent's president,
telephoned Secretary Brienza of the Association and objected to postponement of
the wage increase until June 20. And, in another telephone call, John Walsack,
the Respondent's secretary-treasurer, also protested to Brienza because the Association
"had changed the agreement that Joe Dunn sent " Walsack said that the Respondent
would not sign the Association's draft but would sendt its own draft of complete agree-
ment to Becker, the chairman of the Association's committee.
Accordingly, in the second week of July, Attorney Dunn sent Becker the Respond-
ent's draft of a complete agreement. Like the Association's draft, the Respondent's
draft inserted the new economic provisions in the body of the old contract It
ESSEX COUNTY DISTRICT COUNCIL OF CARPENTERS, ETC . 865
differed from the Association's draft only in the following four respects: (1) the
effective date of the contract was to be June 2 instead of June 20; (2) the 30-day
grace period in the union-security clause of the old contract was to be changed to
7 days. (3) a reference to "assistant foremen" in one of provisions in the old contract
was to be changed to "other foremen"; and (4) the "nonunion condition" provision of
the old contract was retained.
On Monday, July 16, the bargaining committees of the parties met and discussed
the differences in their proposed drafts. The Association agreed to the Respondent's
requests with respect to the effective date of the contract and the changes in the grace
period in the union-security clause and in the reference to "assistant toremen," leav-
ing as the only remaining point of difference the inclusion or exclusion of the "non-
union condition" provision. The Association insisted that this provision be deleted
and the Respondent insisted that it be retained, arguing that if the provision were
illegal, it would be ineffective because of the continuing "legality" provision of the
contract. During the discussion, the negotiators agreed that the only issue remaining
was whether the "nonunion condition" provision should be continued in the new
contract, but the Respondent's representatives said that, if the Association insisted
upon its deletion, "there would be another strike . . . that the wage agreement would
be all off and that the wages would go back to the original demand that [the
Respondent] made." And, with this, the meeting ended.
On Thursday morning, July 19, Dunn, the Respondent's attorney, arranged a
meeting at his office with Secretary Brienza of the Association and President Galway
and Secretary Walsack of the Respondent. Dunn told Brienza at this meeting that
there would be a strike if the contract was not signed and Brienza pointed out that
the Association had refused to accept the "nonunion condition" provision and had not
changed its mind. Walsack said that the Association had given the "same clause"
to the Central Jersey District Council of the Carpenters. Upon examining the
Central Jersey Council's contract (which, incidentally, was not produced nor called
for by the parties at the hearing), Brienza (with the approval of the Association's
attorney who had been called into the meeting) offered to incorporate certain clauses
of the Central Jersey contract although not the "nonunion condition" provision sought
by the Respondent. Although Dunn recommended acceptance of Brienza's offer and
President Galway of the Respondent said he would recommend acceptance to the
Respondent's Council at a meeting that night, Galway also said that the Respondent
would "never go along" with the offer but would insist upon retaining the "non-
union condition" provision of its old contract. Galway added, "We are going to
have a meeting tonight, Thursday night, and if we don't get this contract signed, they
will strike Monday morning."
On the following morning, Walsack telephoned Brienza and said that the Respond-
ent insisted on the "nonunion condition" provision of the old cotract and was going
to call a strike on Monday, July 23.
On Monday, July 23, the Respondent struck 9 of the Association's contractor-
members who were then employing members of the Respondent on 13 different jobs.
None of these contractors had any dispute with the Respondent except the lack of
a signed contract. During the strike, five of the struck contractors signed separate
contracts with the Respondent containing the "nonunion condition" provision before
August 16,5 and the remaining four contractors who had been struck signed similar
contracts on or after August 16,6 the date the district court denied an injunction
against the strike. Upon the signing of these contracts, the employees of six of the
struck contractors immediately returned to work.? The work of another one of the
5 The contractors who signed such contracts with the Respondent from July 23 up to
August 16 were the following:
William L. Blanchard Co. on July 23.
Essex Contractors on July 23.
Damon Douglas Co. on July 24.
Thomas Construction Co. on August 9.
Pellecchia Construction Co. on July 26.
O The struck employers who signed contracts with the Respondent on and after
August 16 were the following:
DiGirolamo Construction Co. on August 24.
Terence McHugh, Inc. on August 23.
Max Drill on August 16.
Becker Construction Co. on August 17.
The struck employers whose employees returned to work upon the signing of these
contracts were: William L. Blanchard Co., Essex Contractors, Damon G. Douglas Co.,
Pellecchia Construction Co., DiGirolamo Construction Co., and Becker Construction Co
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
struck contractors had in the meantime been completed by a fellow-member of the
Association who, although not itself struck , had signed the separate individual
contract sought by the Respondent.8 As to the remaining two contractors who had
been struck, there is no direct evidence that their employees returned to work upon
their signing the separate contracts with the Respondent but, from the general evidence
as to the duration of the strike against the other contractors, it may reasonably be
presumed that these employees did return to work upon the signing of the individual
contracts if work was still available for them.9
By the time the hearing before me ended on September 13, 1962, 4 of the As-
sociation's 44 contractor-members were operating under agreements with the Re-
spondent's International, and 26 had signed individual, separate contracts with the
Respondent containing the "nonunion condition" provision. Thus, in addition to the
9 contractors who had been struck, 17 had signed such contracts. 2 of them during
the strike in June,1° 6 of them after the second strike began on July 23 but before
the district court's decision on August 16,11 and the remaining 9 after the court's
decision on August 16.12 As a result, at the time of the hearing, only 14 of the 44
contractors whom the Respondent represents for bat gaining purposes, were without
any contract with the Respondent or its International.
D. Conclusions
It is clear from the evidence, and I find, that the Respondent threatened to strike,
and then on July 23, 1962, did strike the Association's members solely for the
purpose of compelling them and the Association to continue, as part of their new
contract, the "nonunion condition" provision of the previous contract which had
expired on June 1, 1962
The General Counsel and the Association contend that the "nonunion condition"
provision sought by the Respondent constituted an "agreement which is prohibited
by section 8(e)" of the Act and that, by threatening and then striking the Association
and its members with "an object" of "forcing or requiring" the Association and its
members "to enter into" such an agreement, the Respondent committed unfair labor
practices within the meaning of Section 8(b) (4) (i) and (ii) (A). In support of this
contention, the General Counsel and the Association rely upon the Board's con-
s Terence McHugh, Inc, the struck employer, signed its individual contract with the
Respondent only on August 23. Its work which had been interrupted by the strike had
already been completed by Frank W . Bogert Co., another member of the Association
which signed an individual contract with the Respondent on July 23 , the day the strike
began.
O The only evidence as to the strike against these two particular contractors ( Thomas
Construction Co. and Max Drill ) was testimony given in the trial before the district court
judge on August 2 and August 6, which, upon stipulation by counsel, I incorporated in the
present record. According to this testimony, the employees of these two contractors had
not returned to work. But this testimony was given before Thomas Construction Co.
and Max Drill had signed their respective separate contracts with the Respondent on
August 9 and August 16.
10 The June signatories were Gotelli Contracting Co on June 5, and Jerome Construc-
tion Co , on June 18.
11 Those of the employers who were not struck but signed individual contracts from
July 23 through August 15 , were the following:
Frank W. Bogert Co on July 23.
Jung Bros. Inc. on August 9.
Leske Co. on August 15.
Salmond Construction Co. on July 26.
J. M. Straus & Co. on August 10.
Vitale Bros . on August 13.
12 The contractors who were not struck but signed separate contracts with the Respond-
ent on and after August 16 were the following:
Brandstatter Concrete Co. on August 17.
Robert A Howie, Jr. and Sons on August 17.
Ingrassia Construction Co. on August 23.
Walter Kidde Constructors, Inc. on August 19.
Lewis Construction Co. on August 17.
A. Lowe Co. on August 23.
Stevens Construction Co. on August 23.
R L Trainer & Co. on August 21.
Edward M. Waldron, Incorporated on August 17.
ESSEX COUNTY DISTRICT COUNCIL OF CARPENTERS, ETC. 867
junctive construction of Section 8(e) and 8(b) (4) (i) and (ii) (A) of the Act in
the Colson and Stevens case,13 namely, that, although the proviso to Section 8(e)
permits voluntary agreements in the construction industry which are otherwise gen-
erally forbidden by Section 8(e), it does not permit unions to attempt coercion of
such agreements, since the Congress intended to make such an attempt an unfair
labor practice within the meaning of Section 8(b) (4) (A).
In its brief, the Respondent presents a series of arguments attacking the merits
of the General Counsel's case.14 In its primary argument, it disputes the General
Counsel's construction of the language of the "nonunion condition" provision as an
"agreement prohibited by section 8(e)," as well as the validity of the construction
given by the Board to Section 8(e) and 8(b) (4) (A) of the Act in the Colson and
Stevens case. The Respondent thus relies upon the same grounds which led the
district court to refuse a preliminary injunction against the Respondent's strike.
Despite my respect for the opinion of the district court judge, I am bound to
accept and apply the Board's rule of construction in the Colson and Stevens case
that, notwithstanding the proviso to Section 8(e), a union 's attempt to force or
require an employer in the construction industry to enter into the type of agreement
generally prohibited by Section 8(e) is an unfair labor practice within the meaning
of Section 8(b)(4)(A). This leaves for consideration, however, the additional
branch of the Respondent's main contention and the holding of the district court,
that the "nonunion condition" provision sought by the Respondent does not con-
stitute "an agreement prohibited by section 8(e)," because (a) the apparent intent
of the "nonunion condition" provision is not to require a cessation of the contracting
employers' business with nonunion employers, but rather to enforce the existing
legitimate provisions of the Respondent's contracts wherein the contracting employers
have agreed that, in assigning their employees work traditionally performed by
carpenters, they would assign such work only to carpenters represented by the Re-
spondent under the contract; and (b) the "nonunion condition" provision is not
such a "hot cargo" agreement as is forbidden by Section 8(e) of the Act since the
employer does not thereby agree to cease doing business with nonunion or other
employers. And here again, for reasons which will be set forth and with no intended
disrespect to the district court, I must disagree with the Respondent's arguments in
the light of the principles developed by the Board and the courts of appeals in other
cases.
The provision which the Respondent insisted upon continuing in the new contract,
would permit, as one of two exceptions to a no-strike clause, a cessation of work
for a "nonunion condition" either by the employees individually or, "to the extent
13 Supra, footnote 3 See also Local Union No 1065, United Brotherhood of Carpenters,
etc. (Willamette General Contractors Association), 138 NLRB 901 ; Local 60, United
Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, AFL-CIO (Binning Construction Company, Inc.), 138
NLRB 1282.
14 For the most part, as will be noted, the arguments developed in the Respondent's
brief are based upon the material presented earlier in its answer and already summarized
above in the section of this report entitled, "Statement of the Case " The brief, however,
does not advance any argument of estoppel such as that set forth in the answer In any
event, it is clear that such a defense is not available to defeat the rights created by the
Act and enforced by the Board in the public interest. See National Licorice Company v
N L R B, 309 U. S 350.
The Respondent ' s brief does present one procedural argument, not foreshadowed in its
answer, le ., that the "complaint . . must be dismissed because it has no relationship
to the charge filed in this matter." In this argument, the Respondent refers to the fact
that, although the charge was filed on June 4, 1962, and was obviously based upon the
first strike which began on that day and ended on June 20, 1962, the complaint asserts
that the Respondent's unfair labor practices consisted of a later strike threat on July 16
and the second strike which began on July 23. The Respondent argues, in substance, that
the gravamen of the complaint is unrelated to the earlier incidents set forth in the
charge, and that the complaint has therefore no reasonable relationship to the charge and
should be dismissed . But the Respondent ignores the continuity of the Respondent's acts
which, according to the allegations of the complaint as well as the evidence already
summarized, began with the insistence of the Respondent upon the "nonunion condition"
provision on June 1, continued through the strike of June 4 to 20, and were eventually
climaxed by the Respondent's threat of strike and the second strike of July 23. It seems
clear to me that the complaint was reasonably and properly based upon the charge in the
case I therefore reject the Respondent's claim that the complaint was improperly
issued and should therefore be dismissed.
708-006-64-vol. 141-56
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
legal," by the employees at the request of the Respondent . 15 Defining the basic
,term, "nonunion condition ," the provision states that-
A non-union condition shall prevail when employees are employed without a
collective bargaining agreement on any construction work which is normally
performed by employees working under a collective bargaining agreement with
a Union affiliated with the Building Trades Department of the AFL-CIO.
As the Respondent points out , this definition does embrace possible situations in
which a contracting employer might violate the work-jurisdiction provisions of the
,contract by using as its own employees on work traditionally performed by car-
penters, workers who are not qualified as members of that craft nor therefore
,eligible for membership in, and representation by, the Respondent . And, if the
provision now under consideration were by its language limited to these situations,
its reservation to the Respondent of the right to strike would not be prohibited by
Section 8 ( e) but would be permissible and even protected under the provisions of
the Act.'6
But the language of the instant provision is not limited to these situations. On
its face , it also extends to situations in which contracting employers engage in con-
struction on jobsites with other employers whose employees working at these sites
include any building craftsmen not covered by a contract although their crafts are
normally covered by contracts with either the Respondent or another appropriate
craft "Union affiliated with the Building Trades Department of the AFL-CIO."
These are clearly situations in which possible strikes under the "nonunion condition"
provision would exert pressure upon the contracting employers to stop their work
at the particular jobsites and thus to cease doing business with the noncontracting
employers . Unquestionably, such strikes would be secondary boycotts violative of
Section 8 (b)(4) of the Act, 17 and an agreement which would permit them is the
type of "hot cargo" agreement which Section 8 (e) of the Act was intended to
prohibit, even though in its other applications the agreement in question might be
perfectly legal.18
The Respondent contends that, even so, the "nonunion condition " provision is
not prohibited by Section 8(e) of the Act because under the wording of the provision
insisted upon by the Respondent , the employer would not expressly "agree to cease
doing business with any other person ." But Section 8(e) specifically prohibits im-
plied as well as express agreements by employers to cease doing business with other
persons and , as the Board has held with judicial approval , such an implied agreement
exists when ( as in the "nonunion condition" provision in the present case) an em-
ployer assents in advance to a cessation of work by its employees which would tend
to force the employer to cease doing business with other employers under circum-
stances which the contracting union deems objectionable . 19 The amplication is even
clearer when , as in the "nonunion condition " provision in the instant case, the
employer also assents to the right of the union to request the employees to stop
work under such circumstances.
Accordingly, upon all the foregoing considerations and contrary to the Respond-
ent's main contentions , I find and conclude , as the complaint alleges, that the "non-
union condition" provision for which the Respondent struck the Association and its
member, would have amounted to an implied agreement by the Association and
its members as employers , to cease doing business with other contractors employing
building craftsmen not covered by a contract with the Respondent or any union
affiliated with the Building Trades Department of the AFL-CIO, and that it would
11 See the full language and context of,the provision which has already been set forth
in section A of this report.
16 See Tacoma Printing Pressmen's Union No. 44 ( Valley Publishing Company), 131
NLRB 1090, 1093, and cases therein cited.
11 International Brotherhood of Electrical Workers, Local 501, et at (Samuel Langer) v
N.L R B , 341 U S. 694
1s District No 9, International Association of Machinists , AFL-CIO, Greater St. Louis
Automotive Trimmers, etc v. NL.RB, 315 F 2d 33 (CA.DC.), enfg. 134 NLRB 1354.
19 Amalgamated Lithographers of America and Local 78 (Miami Post Company), 130
-NLRB 908, enfd. sub nom N.L.R.B. v. Employing Lithographers of Greater Miami, Florida,
301 F. 2d 20 (C.A. 5) ; Los Angeles Mailers Union No 0, etc (Hillboro Newspaper Print-
ing Company ), 135 NLRB 1132, enfd. 311 F 2d 121 (C A.D C.) ; Amalgamated Lithog-
raphers of America and Local No 17 (The Employing Lithographers , etc.), 130 NLRB
•985, 989; Mary Feifer d/b/a. American Feed Company, 133 NLRB 214 ; Dan McKinney
.Co., 137 NLRB 049.
ESSEX COUNTY DISTRICT COUNCIL OF CARPENTERS, ETC. 869
therefore have been an "agreement which is prohibited by Section 8(e)" within the
meaning of Section 8(b) (4) (i) and (ii ) (A) of the Act.
In anticipation of this possible interpretation, the Respondent's second main con-
tention is that even if the "nonunion condition" provision were on its face prohibited
by Section 8(e), the Respondent's strike to obtain its inclusion in the contract was still
perfectly legal and innocent of violation of Section 8(b) (4) (A) because the "legality,"
grievance, and arbitration provisions upon which the parties had admittedly agreed,
would have nullified the illegal features of the " nonunion condition" provision.
Acceptance of this argument would permit union compulsion of an agreement
containing a provision prohibited by Section 8(e) whenever the agreement also
included a "legality" provision, leaving the question of legality for later determina-
tion either in the grievance or arbitration processes or in some even later appropriate
proceeding under the Act before the Board. It would require an employer, objecting
to a provision prohibited by Section 8(e) and faced with a strike, to elect to resist the
strike for the illegal provision without protection from Section 8(b)(4)(A) of the
Act, or to avoid the strike by accepting the provision in reliance upon its nullification
under the "legality," grievance, and arbitration provision of the contract. Obviously,
neither of these alternatives would afford the employer satisfactory and reliable
support for well-founded objections to a provision prohibited by Section 8(e). Not
only would the employer's resistance to the strike for the illegal provision be weakened
by the withdrawal of the protection of Section 8(b)(4)(A) of the Act, but the
alternative course of accepting the provision and relying upon its nullification under
the "legality" provision and the grievance and arbitration procedures would subject
him to the uncertainty of whether, under these latter procedures, the employer could
overcome a possible contention by the Union that his acceptance of the provision
in question had in fact been voluntary and that the provision was therefore justified
by, and enforceable, under the proviso of Section 8(e) of the Act.
The Respondent cites no authority to support its argument based upon the asserted-
ly effective nullification of illegal provisions by "legality" provisions in the same
contract. Actually, the same general argument has been repeatedly rejected over the
years by the Board and the circuit courts of appeals when it has advanced by
unions and employers as a defense to complaints of unfair labor practice based upon
their execution and maintenance of fully expressed, self-contained, and clearly illegal
,contractual provisions 20
If anything, the Respondent's argument has even less merit in cases like the
present case in which the unfair labor practice alleged by the complaint is not the
previous execution and maintenance of an illegal provision agreed upon the parties,
but an attempt by a union during the negotiation of a contract to compel the employer
to enter into an agreement including a provision which is clearly prohibited by
Section 8(e) of the Act and to which the employer has therefore objected, as was
its right under Section 8(b) (4) (A) as construed by the Board in the Colson and
Stevens case, supra. Thus, in the present case, the Association, by exercising this
right and by raising the question of legality in advance, properly avoided both the
execution of the illegal provision and any future attempt by the Respondent to
apply and enforce it. At the same time, the Association incidentally afforded the
Respondent an opportunity either to withdraw the illegal proposal or to submit a
modified or limited , legal proposal to which the Association could agree. When
20N.LR.B. v. Gaynor News Company, Inc, 197 F. 2d 719, 723-724 (C.A. 2), affd 347
U.S. 17; N L.R.B v. Gottfried Baking Co., Inc, 210 F. 2d 772, 780 (C.A 2) ; NLRB. v.
Eichleay Corporation, et at., 230 F . 2d 64 , 65 (C.A . 6) ; NLRB . v E. F. Shuck Construc-
tion Co., et at., 243 F. 2d 519, 521-522 (C .A 10) ; N L R.B. v . Broderick Wood Products
Co., et at, 261 F. 2d 548, 556-558 (C.A. 10) ; Building Material Teamsters , Local 282,
etc. (Crawford Clothes, Inc ), v. N.L R.B., 275 F. 2d 909, 912 (C.A. 2). But see John L
Lewis v. Quality Coal Corp ., 270 F . 2d 140, 142-143 ( CA. 7) ; Perry Coal Company et at.
v. N.L R B, 284 F. 2d 910 (C.A. 7)
As I have noted in the text, the foregoing cases, like the present case, dealt with ex-
plicit, self-contained, and clearly illegal provisions set forth in the same contract with a
"legality" provision. They, like the present case, are thus distinguishable from cases in
which a provision of a contract or proposal is asserted to be illegal because of its general
incorporation, by blanket reference, of a body of union rules some of which are illegal
Recognizing the significance of this distinction, the courts hold that, in the latter type of
case, a "legality" provision in the same contract or proposal will nullify incorporation of
those rules which are illegal. N.LR.B. v. News Syndicate Co., Inc, 365 U.S. 695, 699-
700, affg. 279 F. 2d 323 ('C.A. 2), and setting aside 122 NLRB 818; International Typo-
graphical Union, AFL-CIO v. N.L.RB., 365 U.S 705, reversing 278 F. 2d 6 (CA. 1) ;
Honolulu Star-Bulletin Ltd v N.L.R.B., 274 F. 2d 567, 569-570 (C.A.D C.).
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent nevertheless insisted upon the provision as it was written and struck
to obtain it, the question of legality was clearly an issue between the parties in spite
of the dubious significance of the "legality" provision, and was ripe for a timely
determination by the Board under Section 8(b) (4) (A) of the Act. For the Board
to refuse such a present determination (as the Respondent in effect urges) upon the
ground that the "legality" provision might later be applied to nullify the " nonunion
condition" provision, would deprive the Association of the protection which Section
8(b) (4) (A) was intended to afford, and, as I have already noted, would leave it no
satisfactory, reassuring alternative if it still persisted in its rejection of the illegal
features of the "nonunion condition" provision. For these reasons, I reject the
Respondent' s argument that the "legality," grievance and arbitration provisions
preclude my present findings that the "nonunion condition" provision amounted to an
"agreement prohibited by section 8(e)" and that, by striking the Association's mem-
bers to obtain it, the Respondent committed an unfair labor practice within the
meaning of Section 8(b)(4) (A) of the Act.
There remain for consideration two additional arguments advanced by the Re-
spondent in its brief. The first is that the object of its strike was not to coerce the
Association's acceptance of the "nonunion condition" provision, but to compel the
Association to execute a written contract including the "nonunion condition" provi-
sion to which it asserts the Association had orally agreed on June 20 but thereafter
repudiated. The short answer to this argument is that the evidence which I have
summarized shows no oral agreement between the parties on the "nonunion condition"
provision. In the negotiations on June 11, 20, and 21, the matter had been specifically
eliminated from the discussions at the request of International Representative Rajoppy,
and the scope of the oral agreement actually reached by the parties on June 21, which
persuaded the Respondent to lift the first strike, was limited solely to the economic
issues The inclusion or exclusion of the "nonunion condition" provision thus re-
mained an unresolved issue and , when the parties later disposed of still further de-
mands made by the Respondent m the course of their attempts to agree upon a draft
of contract for execution in July, it was the only issue. It is clear, and I find, that
the object of the Respondent's strike on July 23 was not the execution of the terms
of a contract orally agreed upon, but for the inclusion in the contract of the "non-
union condition" provision upon which there had been no prior oral agreement.
The Respondent's final argument is that actual coercion of the Association's 26
members who signed separate contracts containing the "nonunion condition" provi-
sion is essential to a finding of the violation of Section 8(b) (4) (i) and (ii) (A)
alleged by the complaint, and that since there was no such evidence, the complaint
must be dismissed. But actual coercion is not an essential element of the unfair
labor practices forbidden by Section 8(b) (4) (i) and (ii) (A) of the Act. All that
need be shown, and has been shown in the present case, is that the Union engaged
in a strike or otherwise threatened the employer, with "an object" of forcing or
requiring him to enter into an agreement prohibited by Section 8(e). Accordingly, I
reject the Respondent's argument.
In sum, upon the foregoing considerations, I find no merit in any of the arguments
advanced by the Respondent and, upon the evidence and in accordance with the
allegations of the complaint and the contentions of the General Counsel and the
Association, I find and conclude that the "nonunion condition" provision sought by
the Respondent constituted an "agreement which is prohibited by section 8(e)" of the
Act and that, by threatening and then striking the Association and its members on
July 23, 1962, with "an object" of "forcing or requiring" the Association and its
members "to enter into" such an agreement, the Respondent committed unfair labor
practices within the meaning of Section 8(b) (4) (i) and (ii) (A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in con-
nection with the operations of the members of the Association, 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 thereof.
V. THE REMEDY
It has been found that the Respondent committed unfair labor practices within
the meaning of Section 8(b) (4) (i) and (ii) (A) of the Act by threatening to strike,
and then actually striking, the Association and its members, with an object of forcing
and requiring the Association and its members to enter into an agreement (the "non-
union condition" provision) which is prohibited by Section 8(e) of the Act. I shall
ESSEX COUNTY DISTRICT COUNCIL OF CARPENTERS, ETC. 871
therefore recommend that the Respondent cease and desist from such unfair labor
practices and take certain affirmative action which is necessary to effectuate the
policies of the Act.
A question has arisen as to the appropriate order affecting the separate contracts
containing the "nonunion condition" provision , which individual members of the
Association executed with the Respondent . The General Counsel and the Associa-
tion contend that the "nonunion condition" provision should in effect be expunged by
an absolute prohibition of its enforcement by the Respondent . The Respondent con-
tends in its brief that, assuming a finding that it committed the unfair labor practices
alleged by the complaint , ". . . the order should provide that the [individual con-
tracting] member [ of the Association ] be permitted to reaffirm the entire agreement
as executed or request reopening of the entire agreement for further collective
bargaining ." For the following reasons, it appears to me that the situation requires
an intermediate recommendation which would not disturb the individual contracts
except to permit an election by each of the contracting members of the Association as
to whether the "nonunion condition " provision should be included or excluded from
their respective , individual contracts.
The unfair labor practices which I have found were committed by the Respond-
ent, consisted of its threat of strike and its actual strike on July 23, 1962, to compel
the Association and its members to enter into a contract including the "nonunion con-
dition" provision . From the evidence, it appears that the Respondent thereby con-
tinued its pressure on the Association and its members which it began with its earlier
strike from June 4 to June 20 , 1962. It was in this coercive atmosphere that 26 of
the Association 's 44 members , notwithstanding their long representation by the As-
sociation as their bargaining representative in negotiations with the Respondent, en-
tered into their separate contracts with the Respondent containing the "nonunion
condition" provision upon which the Respondent insisted. ( See footnotes 5, 6, 10,
11, and 12 and related text , supra.)
My conclusion that the Respondent committed the unfair labor practices alleged
in the complaint is not based-nor need it be based-upon any finding that the
Respondent 's conduct actually coerced the execution of the individual contracts.
Nor, upon the state of the present record, would I make any such unequivocal find
ing. For, as I have already pointed out , effective coercion is not an essential ele-
ment of an unfair labor practice within the meaning of Section 8 (b) (4) (A) of the
Act and, for this reason, I sustained the objection of the General Counsel and the
Association and rejected an offer by the Respondent to show that the Association's
members who signed the individual contracts were not actually coerced. It therefore
does not appear to me upon the present record that inclusion of the "nonunion
condition " provisions in the individual contracts was clearly the result of the Re-
spondent 's coercion . Accordingly, I do not make the unqualified recommendation
that the "nonunion condition " provisions be set aside, which the General Counsel
and the Association have requested.
But it is clear from the record that these individual contracts were executed in
such an atmosphere of coercion ( for which the Respondent was certainly responsible)
that the individual members of the Association who abandoned their long-standing
representation by the Association under the stress of the strikes and the threats there-
of, should now be given the opportunity of affirming or rejecting the "nonunion
condition" provision , free from the influence of such pressures . In my opinion, such
a free election must be permitted if the policies of the Act are to be served. More-
over , in making my limited recommendation , I have considered and rejected the
Respondent 's request that the contracting Association members be required to elect
either to affirm or reject their separate contracts in their entirety. The terms of these
contracts other than the "nonunion condition " provision are not involved.
Specifically, I shall recommend that, in order to dissipate the effects of the unfair
labor practices and to effectuate the policies of the Act, the Respondent shall refrain
from enforcing , applying, or attempting to enforce or apply any "nonunion condi-
tion" provision such as that set forth in the Intermediate Report or any other agree-
ment prohibited by Section 8(e) of the Act , which , expressly or by incorporating
reference , constitutes all or part of any agreement or contract entered into by the
Respondent on or after June 4, 1962, and before the date of Respondent 's receipt
of this Intermediate Report, with any employer who was at any time during this
period a member of the Association, unless and until ( 1) the Respondent has notified
such employer in writing that the employer may elect to withdraw from or affirm
the "nonunion condition" provision or other agreement prohibited by Section 8(e)
without disturbing the other provisions of their agreement , and (2 ) the employer
has by written reply notified the Respondent of the employer's election to affirm the
provision in question.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The constituent members of The Associated Contractors of Essex County, Inc.
(herein called the Association ), are employers engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. Respondent , The Essex County and Vicinity District Council of Carpenters and
Millwrights , United Brotherhood of Carpenters and Joiners of America , AFL-CIO,.
is a labor organization within the meaning of Section 2 (5) of the Act.
3. The Respondent committed unfair labor practices within the meaning of Sec-
tion 8(b) (4) (i ) and (ii ) (A) of the Act by threatening and then causing a strike
of the employees of the constituent employer -members of the Association on July 23,
1962, with an object of forcing and requiring the Association and its employer
members to enter into an agreement prohibited by Section 8(e) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Harry Paul Tiner, d/b/a Seago Construction Company and
John L. McClellan
International Association of Bridge , Structural and Ornamental
Ironworkers, Local 433, AFL-CIO and John L. McClellan.
Cases Nos. 20-CA-2233 and 20-CB-913. March 27, 1963
DECISION AND ORDER
On August 23, 1962, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent Employer and Respondent Union had not engaged
in the unfair labor practices alleged in the complaint as amended
and recommending that the complaint be dismissed in its entirety, as
set forth in the attached Intermediate Report. Thereafter, General
Counsel and Respondent Employer filed exceptions to the Inter-
mediate Report and the former filed a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Rodgers and Leedom].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner except as modified herein.
1. We adopt the Trial Examiner's finding that Respondent Em-
ployer is engaged in commerce within the meaning of the Act and
that it will effectuate the policies of the Act to assert jurisdiction
141 NLRB No. 79.