Local Union No. 2, United Assn. of Journeymen, Etc.

National Labor Relations Board - Board Decisions

Jun 2, 1965

152 N.L.R.B. 1093 (N.L.R.B. 1965)

LOCAL UNION NO. 2, UNITED ASSN. JOURNEYMEN, ETC. 1093
Local Union No. 2, of the United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL-CIO [Astrove Plumbing and
Heating Corp.] and Jose Rodriguez and the Urban League of
Greater New York, Inc. and National Association for Puerto
Rican Affairs and the Association of Contracting Plumbers of
the City of New York, Inc., Party to the Contract. Cases Nos.
2-CB-4024, 2-CB-40241-2, and £-CB-4024-3. June 2, 1965
DECISION AND ORDER
On February 25, 1965, Trial Examiner A. Norman Somers issued
his Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Therafter, the Respondent filed exceptions to the Decision and
a brief in support thereof, and the General Counsel and Intervenors
Bernard Allman and Isaac Borges 1 filed briefs in support of the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Brown and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire rec-
ord in these cases,2 including the Trial Examiner's Decision, the excep-
tions, and the briefs, and hereby adopts the Trial Examiner's findings,
conclusions, and recommendations .3
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts at its
Order the Recommended Order of the Trial Examiner and orders that
the Respondent, Local Union No. 2 of the United Association of Jour-
neymen and Apprentices of the Plumbing and Pipefitting Industry of
'Allman and Borges, two of four individual complainants herein, requested and were
granted leave to intervene at the hearing, and were represented by attorneys for the
National Association for the Advancement of Colored People.
g The Respondent's request for oral argument is hereby denied as the record, the ex-
ceptions, and the briefs adequately present the issues and the positions of the parties.
3 The notice is hereby amended by substituting the word "ordered" for the word
"recommended" in the seventh line of the paragraph beginning "After a hearing duly
held."
152 NLRB No. 114.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the United States and Canada, AFL-CIO, its officers, agents, and
representatives, shall take the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On June 30, 1964, the General Counsel issued his consolidated complaint alleging
that Respondent Union violated Section 8(b)(2) and 8(b)(1)(A) of the Act by
causing and attempting to cause Astrove Plumbing and Heating Corp., an employer,
to discriminate against employees in violation of Section 8(a)(3) of the Act. The
complaint was issued on charges filed May 7, 8, and 11, 1964, by the respective
Charging Parties in Cases Nos. 2-CB-4024; 2-CB-4024-2; and 2-CB-4024-3
(These, all making substantially the same accusation, were consolidated by order
issued simultaneously with the General Counsel's complaint.) Respondent filed an
answer denying the violations alleged. The matter in dispute was heard before Trial
Examiner A. Norman Somers in New York City on August 12 and 13, 1964. All
parties appeared and were represented by counsel. Two of the persons alleged to
have been discriminated against, Isaac Borges and Bernard Allman, appearing by
attorneys for the NAACP, requested and were granted status as intervening parties.
As is customary, the brunt of the presentation of the two opposing positions was
borne by respective counsel for the General Counsel and for Respondent, but counsel
for Borges and Allman participated in examination of some witnesses, and like
opportunity was accorded to all other parties.
The General Counsel and Respondent have filed briefs, and so have NAACP
counsel on behalf of Borges and Allman. These have been carefully read and con-
sidered. On the whole record, and my observation of the witnesses, I hereby make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER ; DATA ON COMMERCE
The employer in this case is Astrove Plumbing and Heating Corp ., the contractor
for the installation of the plumbing and heating equipment in New York City's market
terminal project in the Bronx . Astrove is a member of the Association of Contracting
Plumbers of the City of New York ( called the Plumbing Association ), which nego-
tiates and administers collective -bargaining contracts with labor unions for its
employer members. In regular course, Astrove receives over $50,000 worth of
materials a year from out of the State , and the Plumbing Association buys and dis-
tributes over $500,000 worth of materials a year to various construction projects in
the State , of which more than $ 50,000 comes from outside the State . It is not dis-
puted that Astrove is engaged in commerce within the meaning of the Act, and to an
extent , which meets the Board 's self-imposed standards for asserting its jurisdiction.
IT. THE LABOR ORGANIZATION INVOLVED
Respondent , Local Union No. 2 of the United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada,
AFL-CIO (referred to, variously , as Respondent , Local 2, or the Union ) is a labor
organization within the meaning of the Act. It has a collective -bargaining agreement
with the Plumbing Association covering the terms and conditions of employment of
the employees of the constituent employer-members.
III. THE UNFAIR LABOR PRACTICES
A. The issue
Whatever its other intriguing features, this case involves only one issue for us:
whether Respondent invaded the rights guaranteed to employees under the National
Labor Relations Act. To help keep the inquiry within that focus, we start with a
running outline of the portions of the Federal statute here involved:
Section 7 of the National Labor Relations Act insures to employees (among other
freedoms) the right to join a labor union or not to do so. To implement that right,
Section 8 of the Act places certain restrictions on employers and also on unions.
Among them is Section 8(a)(3) • it forbids an employer to "discourage or encourage"
membership in a union by "discrimination in respect to hire or tenure of employees,"
that is to say, an employer may not deprive an employee of a job (or deny an appli-
LOCAL UNION NO. 2, UNITED ASSN. JOURNEYMEN, ETC. 1095
cant one ) because he is or is not a member of a union. The correlative of this pro-
hibition for unions is found in Section 8(b)(2) of the Act: it forbids any "labor
organization" to "cause or attempt to cause an employer [thus] to discriminate against
an employee ," i.e., a union may not cause or try to cause an employer to deprive an
employee of a job (or to deny an applicant one) because of membership or nonmem-
bership in a union . An exception to this restriction is contained in the so-called
"union shop " proviso of the Act, which permits an employer and a union to make a
contract requiring union membership as a condition not of being hired ( for this
would be a "closed shop," outlawed by the 1947 amendment to the Act) but of
retaining his job-in ordinary industry after the 30th and in the construction industry
after the 7th day from the day of employment . (The contract in this case contains
no such provision.)
The Union here is accused of violating Section 8(b)(2) and 8 (b)(1) (A) of the
Act in having "caused" Astrove, the plumbing contractor on the Bronx Market Ter-
minal project , to "discriminate" against the four complainants ( Jose Rodriguez, Jerry
Gonzalez, Isaac Borges , and Bernard Allman) in violation of Section 8(a) (3) by not
permitting them to work (after having already hired them ), because they are not
members of Respondent Union. The complainants were hired as the culmination of
overtures made to Astrove by New York City' s Commission on Human Rights, which
administers the city's fair employment practice ordinance , and Respondent 's members
walked out in protest against working with them . The matter was treated by the city
as a race discrimination issue, which ultimately washed out in the settlement made
between Respondent and the mayor. But the General Counsel contends that what-
ever the racial considerations , the object of the walkout was nevertheless to prevent
the complainants ' employment on the market project because of their nonmembership
in Respondent.
Respondent Union disputes the accusation . It contends , first , that if the members
walked out , it was pursuant to their "right" as "individuals" to determine whom they
wanted to work with , and that Respondent , as a union , had no hand in their action;
and secondly , that the walkout , even if Respondent be responsible for it, was not
illegal, in that its purpose was to bar the complainants from employment not because
of nonmembership , but because their employment was a breach of the clause in its
contract under which its members were entitled to a hiring "priority" under standards
other than membership.) Residually , Respondent claims that in this instance the
Board should in any event defer to the settlement it reached with the mayor in termi-
nating the strike?
B. The sequence culminating in Astrove's hiring of the four complainants
1. Astrove's dealings with the human rights commission
Early in 1964, shortly after the city awarded Astrove the plumbing contract on the
market project, the city's commission on human rights approached him (i.e., Ralph
Astrove, its president, who will hereafter be referred to interchangeably with his
corporation) about employing Puerto Ricans and Negroes on the project. It then
advised him that it had qualified plumbers for that purpose. Astrove replied that he
was fully "manned," but if the situation should change, he "would talk further" with
it. On April 9 Astrove dismissed about 11 plumbers, all members of Respondent,
who, although they were, as is presumed, certified by Repondent as "mechanics" or
journeymen plumbers, "weren't quite used" to the work on the project, which Astrove
described as a "rough job." On April 23 Astrove was at the commission's office.
There, Theodore Brown, chief of the business and employment division of the com-
mission, told him the commission had four qualified plumbers for him. Astrove
said he would see them. The next day he interviewed the four complainants sepa-
rately in his office. They told him of their experience and he took their names,
addresses, and references, and said he would let them know.
Astrove met again with Brown at the commission's quarters on April 27 or 28. On
this occasion the complainants were present. Astrove testified that Brown said "these
men were qualified" and that "unless [Astrove's] hiring practices were modified," his
contract could be canceled.
1 The General Counsel alleges that the clause in question is a further violation of the
Act.
2 No unfair labor practice charge was filed against Astrove Corp., the employer. Under
Section 10(b) of the Act of the Board is therefore without authority to proceed against
Astrove.
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Astrove's telephone conversation with Cohen, Respondent's president,
over the hiring of the complainants
On April 29 each complainant received from the commission a letter and wire
instructing him to report for work the next morning to Patrick Mucci, the foreman
for Astrove on the project. Astrove had apparently been expecting this, for on that
day or the day before, he called Jack Cohen, president of Respondent, and pleading
that he was being forced to do so by the commission, asked Cohen if there was "any
objection to [his] hiring these men as plumbers." Cohen answered (as he quoted
himself), "What do you want from me? You are the one that is going to pay them?",
and (as Astrove quoted him) that he "had no way of stopping [Astrove] from hiring
them"; and that at the conclusion of the conversation, Cohen told Astrove he was
violating the "union security" clause of the contract. He further said that if Astrove
"was going to proceed," he, Cohen, would "prefer charges against [Astrove] before
the Joint Arbitration Board immediately." 3
Their versions were not in accord on two matters: (a) as to how Astrove described
these men, and (b) as to whether Cohen in voicing his objection, also said it was
"unfair" to the union members Astrove had "laid off" early that month. As to (a),
Cohen at first acknowledged that Astrove "told [him] he was hiring non-union men."
However, when asked to give the full conversation, Cohen quoted Astrove as describ-
ing them as "not competent" or "not qualified," this time not mentioning "non-union."
Astrove never disputed the "non-union" characterization, but he did dispute the "not
competent" or "not qualified" part. Concerning this he testified:
I couldn't have made any comment at all because I was taking the word of the
Commission on Human Rights, because in my meetings with them I insisted that
these men be qualified journeymen plumbers. And they told me that's what
their intent was, to send qualified plumbers to the job.
As to (b), the plumbers referred to in that part of Cohen's version were those
Astrove had dropped on April 9. It was in relation to this portion of Cohen's version
that Astrove testified that he had not laid them off because of lack of work but had
discharged them because of lack of suitability for the "rough job" on the project.
Had Cohen raised the issue of these plumbers in the conversation, Astrove, as is
reasonably to be expected, would have disputed their layoff status to Cohen, if only
to assure himself a free hand in respect to them in the future (since he stressed he did
not want them back). There is no indication that Astrove did so, from which it would
follow that he was not given reason to .4
The probabilities thus negate Cohen's testimony that Astrove then said anything
either way about the complainants' competence, or that Cohen brought up the
earlier termination of the other plumbers. Cohen's credibility will be more fully
discussed later. At this point, however, it may be said that Astrove was the more
objective and disinterested witness, having no direct stake in the outcome of this
litigation. I accordingly find that in that conversation Astrove, pleading that he was
being forced to hire "nonunion men" by the Rights Commission, asked Cohen for
clearance to do so, and Cohen with some irritation retorted he "had no way of
stopping" him, but he would at once prefer charges against him before the Joint
Arbitration Board for violating the "union security" clause of the contract.
3. Respondent's protest to the Plumbing Industry Board
On April 29, pursuant to instructions from Cohen, Respondent's counsel sent the
following letter to the Joint Plumbing Industry Board:
As attorney for Plumbers Union, Local No. 2, I have been instructed by Jack
Cohen, the President of said Union, to prefer charges against Ralph Astrove and
2 The clause is article 2(a) of the contract. Article 2 Is reproduced in full in the
portion of the conclusionary discussion of this Decision, which considers the legality of
2(a). The pertinent part in this context is the Employer's agreement to:
. . . give priority in employment opportunity to qualified and competent men based
upon their length of employment in the geographical area of the Union El e.
Manhattan and the Bronx], as contrasted and compared with men who have worked
mainly in other geographical areas.
Pertinent to later discussed issues is the confidence Astrove expressed in his capacity,
after over a half century's experience in the field, to determine the complainants' com-
petence without regard to written tests or their references. During the strike precipitated
by the complainants' appearance on the job, he told reporters, and at the hearing he
affirmed to us, that he could have determined their competence and suitability for the
project in "five minutes" had he been given the chance to do so.
LOCAL UNION NO. 2, UNITED ASSN. JOURNEYMEN, ETC. 1097
Astrove Plumbing Company for a violation of the collective bargaining agree-
ment which gives priority in employment opportunity to qualified men based
upon their length of employment in the geographical area of the Union and to
hire persons lacking these qualifications. We would appreciate a hearing before
the Joint Arbitration Board as soon as it is reasonably possible.
Cohen admitted that at that time he did not know the men, or of their experience or
competence, or whether they had or had not worked in Respondent's "geographical
area," or how long.5 Later on April 29, after a talk between Cohen and Matthew
Margaretta, a business agent of the Union, Astrove was informed by Respondent on
the telephone that there would be a walkout of the plumbers the following morning
because of a subsisting grievance over "unsanitary conditions." This will be discussed
after summarizing the occurrences of the next morning.
C. The walkout of April 30
1. The events
In accordance with the commission's instruction of April 29, the four complainants
reported for work at the project on Thursday morning, April 30, well before the 8
o'clock starting time. Gonzalez and Rodriguez encountered each other there about
7:15. They proceeded to the office or trailer of Mucci, the project foreman, to whom
they showed their wires from the rights commission, whereupon Mucci instructed
them to go to the nearest clothes shanty to change into work clothes.
In the shanty Gonzalez and Rodriguez found a dozen or so plumbers changing
clothes and discussing the anticipated appearance of "the four plumbers." Business
Agent Margaretta came into the shanty shortly afterwards. As is undenied and is
essentially conceded, he told the plumbers they were not going to work that day.
One plumber asked why, and Margaretta replied "because of the unsanitary condi-
tions of the place." Another retorted, "Don't give me that baloney. We have been
working with the same goddam conditions, sanitary conditions, all winter long."
Margaretta did not reply and went on from there to Foreman Mucci's trailer. Rod-
riguez and Gonzalez did the same. There they heard Margaretta tell Mucci also that
the men would not work that day because of "unsanitary conditions." Mucci said he
would telephone Astrove to check with him. Margaretta said he need not do so.
that the Union, after a meeting held in its hall the night before, had informed Astrove
over the telephone that the men would strike the following morning for that reason.
Mucci then informed Gonzalez and Rodriguez that there would be no work that day,
and that they should give their names to Charlie Windisch, a deputy foreman, who
would notify them when to report back. Mucci told the same to the other two com-
plainants, Allman and Borges, when they arrived and reported to him shortly after
his conversation with the first two. Neither the complainants nor any of the plumbers
worked that day.
After leaving Mucci's trailer, Gonzalez and Rodriguez observed Margaretta at the
"third" shanty. Gonzalez testified that he approached Margaretta and asked how
he could join Respondent, and that Margaretta replied that he would have to "talk to
his boss first." Gonzalez told Margaretta he was hired by Astrove "to work on this
particular project," and Margaretta said that if that was so there would be "a lot of
trouble for '[Astrove] and ... we are going to strike this project and we are going to
put the men out of work." Margaretta denied having spoken to or seen either of
them before May 18, and that was when Gonzalez appeared at the union hall to take
the test arranged between Respondent and the mayor in settlement of the strike.
Margaretta testified that Gonzalez then addressed him as "Mr. Cohen." Gonzalez, in
rebuttal, testified he had only asked Margaretta to point Cohen out to him. The
union functionary whose identity Gonzalez and Rodriguez were bound to have
learned from their experience on April 30 is the one whom they observed that day in
the clothes shanty and in Mucci's office. Thus, if the complainants were to mistake
anyone for Cohen, it would not be Margaretta. In crediting Gonzalez, as I do, I
consider the relative qualities of their testimony as a whole. This includes Mar-
garetta's testimony attributing the walkout of April 30 to the "unsanitary conditions"
grievance, treated below.
s Astrove testified that the references he received from the complainants as they
ultimately "checked out," which was well after his talks with the Rights Commission
and Cohen and after the outbreak of strike, he found less than inspiring in quality.
But, as found, when he spoke to Cohen, he had no opinion of his own about their com-
petence and expressed none to Cohen concerning it.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The "unsanitary conditions" grievance assigned as the cause
of the walkout of April 30
The "unsanitary conditions" grievance concerned the toilet facilities. The one
obligated to provide them was not Astrove but the general contractor of the project.
The general contractor had supplied mobile units, that are treated with chemicals,
and Respondent claimed that under the State code the men were entitled to facilities
connected up with the public water and sewer systems Margaretta pictured this as a
raging issue among the men. He related how they grieved to him and he to Astrove's
superintendent, and how he indeed threatened the latter with a strike because of it,
and that as a result, Astrove wrote the Department of Public Works about it on
April 17. He further testified that angered by a commissioner of the department say-
ing on the telephone that the facilities were adequate, he decided on April 29 to pull
the men out on strike, and that on that day he called and obtained from Cohen clear-
ance to do so. However, on that day, a meeting was arranged with the works com-
missioner and the resident engineer for 10 a.m. on April 30 to discuss the facilities
grievance. Margaretta also testified that the grievance was adjusted within minutes
after the grievance meeting began. (The resident engineer said they could use the
toilets in his trailer.) Nevertheless, as previously stated, none of the plumbers
worked that day.
Every aspect of the strike thus attributed to the facilities grievance varied from
normal procedure and normal expectation in respect to it, and every significant detail
testified to was lacking in corroboration from sources normally expected to give it.
Margaretta's testimony that the 2 months' grievance has assumed strike threat propor-
tions contrasts with the casual tone of Astrove's letter to the works department.?
Also, Astrove testified to no such threat, and his superintendent, to whom Margaretta
testified he made it, was not produced as a witness. Cohen testified it was not usual
to call a strike over a grievance in advance of a meeting already scheduled for discus-
sion, but no explanation was given for calling this strike 2 hours before the grievance
meeting and timed to when the four complainants, whose hiring Respondent was con-
temporaneously protesting, were due to begin work. Cohen testified that a grievance
over sanitary facilities affects all the workers across the board, and is one over
which the workers in all the crafts would strike together. Yet in this instance only
the plumbers struck. Cohen testified that during such a strike no one works, not even
the foreman or his deputies. Yet Foreman Mucci testified he and his deputies, in con-
trast with the rank-and-file plumbers, stayed on the job and were paid for that day.
Cohen testified that a grievance of that character is one for which the economic
weapon used is not a strike but a stoppage, in which the workers "remain on the
premises." Yet Margaretta instructed the men and told Foreman Mucci that they
were not to work at all that day, with no instructions to stand by pending the outcome
of the grievance meeting or a disclosure to them that such a meeting we even sched-
uled for that day.8 Margaretta testified that when the grievance was "straightened
out" shortly after the scheduled meeting, he instructed such plumbers as remained to
go back to work; yet if there was such an instruction, there was no explanation for
having delayed it until after the foreseeable departure of the bulk of the working
force on the basis of the earlier statement and after the departure also of the four
complainants, whom Foreman Mucci had dispatched in reliance on the earlier state-
ment. Margaretta volunteered it is "not nice to tell the men they got to go out on
strike" and therefore the custom is to inform them of it in advance. Yet they were
not so informed until getting into their work clothes.
d Respondent 's contract with the Plumbing Association provides in article 3 (d) for
"sanitary and drinking water facilities as outlined in . . . the New York State Industrial
Code."
7 The letter, in terms rather bland for an employer facing a strike , merely purports to
"transmit" to the department the Union ' s "request " that the department "direct the
general contractor" to provide the facilities , to which the Union claims the men are
entitled under the State code.
s Hyman Ernst , the job steward , testified he had been told to stand by pending the
adjustment of the grievance. This testimony , given on the second day of the hearing,
is appraised against the following: (1) There is no indication that he communicated
this to the other plumbers , as he would naturally have done if he had been given such
an instruction ; ( 2) neither he nor the other plumbers worked any part of that day ; and
(3) on the first day of the hearing, when asked why he and the others did not work from
April 30 on , his answer the first time was that nonunion men had been hired , making
no distinction between April 30 and May 1.
LOCAL UNION NO. 2, UNITED ASSN. JOURNEYMEN, ETC. 1099
The account given did not square with the probabilities in still other respects:
Margaretta testified that the issue was so live with the men on April 29 that they
were bound to have anticipated a strike over it the next day. This was hardly borne
out by the earthy skepticism which greeted his telling them that it was over that
matter they were being pulled off the job. Neither was it borne out by the fact that
the only item of which they were shown to have spoken in anticipation was the
appearance of "the four plumbers." Margaretta testified that on April 29 he kept
"the job steward ... Mr. Ernst" in touch with all the developments that day concern-
ing the facilities grievance and had told him "to go out and tell the men what took
place there." So whatever could be said for the ignorance of the other plumbers,
Ernst at least should have anticipated the strike, and have so remembered the ascribed
cause as to need no reminder. Yet, as related (supra, footnote 3) when that question
was put to him the first time by the General Counsel, though he was then demon-
strably hostile to that interrogator, he testified that he and the men stayed off the job
from April 30 on because of the hiring of "nonunion men," and not until reminded of
it by Respondent's counsel on cross-examination did he recall the purported distinc-
tion between April 30 and the period from May 1 on.
In contrast with the plumbers, Astrove, as previously stated, was given advance
notice of the strike the day before. Though the grievance concerned a matter that
was not his but the general contractor's responsibility, he appeared on April 30 and
was around the premises when the complainants reported to Foreman Mucci.
Although a grievance of that character is normally handled by the business agent,
Cohen too appeared, for the purpose, he testified, of making "sure that everything is
in order." He arrived about the time of the grievance meeting, which was when the
complainants and the bulk of the plumbers were already gone as a result of Mar-
garetta's unqualified announcement that the men would not work that day. So far
as appears, Cohen raised no question of why Margaretta, on that occasion, had not
ordered merely a temporary work stoppage as is customary for such a grievance.
Cohen took no part in the grievance discussion, and the only talking the record
shows him to have done during his brief appearance was with Astrove, and about
the complainants. He there again told Astrove he had "no way of stopping" him
from hiring them.
D. The walkout on May I and its duration until May 18
On the morning of May 1, as on the morning before, the complainants reported
to Foreman Mucci, and he told them to go to the shanty to change into work
clothes. When they got there, Gonzalez waited outside while the other three went
in. There Job Steward Ernst asked the three if they had a "welfare number." (This
is a mark of union membership on the part of plumbers on jobs with private employ-
ers under contract with Respondent. The number identifies them for the purpose of
being credited with welfare benefits.) The complainants said they had none. Ernst
replied that in that case they could not work 9 (Ernst testified, without denial, that
it was part of his "duty" as a steward "to see whether or not the men who work on
the job are members of the union," and to report anything that was out of line to
Margaretta, the union business agent.)
After getting into work clothes, all four complainants went on to Mucci's office,
and at his direction they filled out and signed W-2 tax withholding forms. He then
told them to wait for "Charlie," the deputy foreman, who would show them where to
work. Charlie appeared a few minutes before 8, and signaled them to follow him
toward the work station. The five went by the "third" shanty, where Ernst, the
steward, was standing with another plumber. The latter, identified only as a "skinny"
fellow, asked the complainants, with Ernst looking on at the shanty's entrance, if
they had union membership books. The answer was no. He whistled and then
shouted, "Hey fellows, come on back. We don't work with nonunion men." The
other plumbers, who had preceded the complainants toward the work station, returned
to the shanties and got out of their work clothes. Ernst, the steward, did the same.
6 Rodriguez quoted an unidentified plumber as saying, "I don't work with colored
people." The other two, who to say the least are more conversant with English than
Rodriguez (it is Allman's native tongue ), made no mention of it . Further, Allman, as
the only Negro among the four (he is a West Indian), would have been the most natural
person to remember and to testify to such a statement if it had been made. I there-
fore discount Rodriguez' testimony on that score as lacking the requisite corroboration.
But even if I were to find such a statement had been made , there would be no warrant
for concluding that the men either acted on or adopted that isolated utterance, much
less that Respondent did so. '
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Borges' undenied testimony, another plumber, identified as "skinny too
[but] a tall fellow," in the presence of Ernst and Foreman Mucci, asked why they
did not "choose some other place," adding, "you come in here without union books
and look what is going on now." The complainants then went to Mucci to find out
if they were to work anyway. He told either them or a representative of the rights
commission, who was also there, that he could not work the project with only four
men.
The complainants appeared at the project every morning from then on until and
including Friday, May 15. Fewer and fewer of the employed plumbers appeared
each day, and then none at all, but throughout, the job was at a total standstill.
Except for Foreman Mucci and his two deputies, none of the plumbers worked dur-
ing those 2 weeks or received any pay. Neither did the complainants: each day
they reported for work, Foreman Mucci told them, either directly or through a
representative of the rights commission, that they could not work because no work
was being done. The striking plumbers finally went back to the job on Monday,
May 18. This was after the settlement of May 15 (to be discussed in section G,
below) and after Astrove, in the presence of the returned strikers, barred the com-
plainants from working.
E. President Cohen's disclaimer of knowledge of eithe, the strike
or its purpose
Cohen, as a witness, professed a lack of knowledge that a strike existed and if it
did, its cause. Respondent's knowledge of the strike and approval of its purpose
fully appears from Cohen's later described press releases and his adoption of the
statement (later also described), of AFL-CIO President Meany, who made an inde-
pendent investigation of the cause. So there would hardly be need to dwell on
Cohen's performance on the subject (which was none too edifying and did less than
justice to the stature he showed in his later testimony concerning the settlement with
the mayor and the circumstances attending the test given pursuant to it) except that
Respondent, rather strangely, still relies on it to support the claim that the General
Counsel has not met his "burden" of proving Respondent's complicity in the strike
and its purpose.
Cohen sought to dissociate Respondent from the May 1 walkout because: (a)
though he knew "men were working" during that period, he did not know if the
number was more than five, and (b) the foreman and his deputies worked and were
paid from May 1 on, which (being union members themselves) he insisted they
would not have done if that strike had been authorized, as was the one on April 30.
Foreman Mucci exposed both reasons: (a) no plumbers in fact worked from May 1
through May 15 anymore than on April 30, and (b) he and his deputies worked and
were paid on April 30, no less than on May 1 and thereafter.
To the question of whether a force decimated to "[no] more than five" did not
indicate there was a strike, his answer was, "It must be that the employer didn't
want to put anybody else on." Ending that surmise was the admission that Astrove
had wired him a request to send plumbers, and though Respondent ordinarily does so
"on request," this time Cohen refused to do so or to order those who were staying
off the job back to work. This last, taken with the later statement that the abstainers
were asserting their right to "work with whom they pleased" undermined the posi-
tion that the objection to Astrove's hiring the complainants was that they were therby
taking jobs of members who were entitled to "priority of employment opportunity"
under the contract. Respondent would hardly have turned down this "employment
opportunity" for its members in multiples of the number of the complainants unless
it too was not "pleased" that its members work with them. Since the job steward
and the plumbers, when they walked out, could not have made it plainer that they
were doing so because they would not work with "nonunion men" and the job stew-
ard testified that there was no other reason, the natural question was whether he too,
Respondent's top official, "did not understand that [to be] the reason." After being
at long last pinned down to a responsive answer, he replied, "No, I didn't understand
that." He adhered to this though admitting that at a meeting of the strikers on May 6
at which he presided, the men said they "wouldn't work with non-union men." He
explained that this was "no concerted action" but "just individual talk."
F. Respondent's press statement and other conduct showing
authorization of strike and its purpose
The kind of credence merited by Respondent's disclaimers is indicated by its own
press releases.
LOCAL UNION NO. 2, UNITED ASSN. JOURNEYMEN, ETC. 1101
On May 4, after a meeting with the human rights commission, Respondent,
through Cohen, issued a press release denying "newspaper reports and statements
of some City Officials that [it] discriminates against Puerto Ricans and Negroes."
It called attention to the "priority of employment opportunity" clause of its contract,
and added:
At the present time we have members of the Union who are unemployed and
who are entitled under the terms of the contract to get first opportunity of
employment at Bronx Terminal Market.
We regard this action of the Employer as a breach of the agreement and
charges have been preferred against him with the Joint Arbitration Committee
,of the Plumbing Industry Board. We are awaiting a hearing on this matter.
In a lengthier press release, issued May 8, Respondent, through Cohen, again
denied that it discriminated against minority groups, and again citing the "priority"
clause, it stated:
At the time these four men were hired by the employer there were about two
hundred members of Local 2 looking for jobs in the area who were entitled to
receive the first opportunity mentioned in the contract. Consequently, the
members of Plumbers Local 2 on the job refused to work in the face of this
breach of the agreement, and charges have been preferred against the employer.
The statement also gave Respondent's position regarding a test for the complain-
ants, which was the subject of the settlement negotiations with the city later dis-
-cussed. From what appears above, however, the press releases made explicit what
Cohen, on the witness stand, treated with "know nothing" evasion; namely, that
Respondent knew that its "members ... on the job refused to work," and that it
approved of their action. The explanation that this was because of a "breach of
agreement" was hardly in keeping with the plumbers' utterances at the time of the
walkout, or with the testimony of Job Steward Ernst that he too knew nothing about
the complainants' competence or the length of employment in Respondent's "geo-
graphical area," or of any other reason for the walkout than the presence of the
nonmembers.
A pronouncement coming from Respondent's most prestigious source supports the
reason given by the members and by Ernst. AFL-CIO President George Meany,
himself former president of Respondent and now a "gold card" member, made an
independent investigation of the strike, in which he had consulted Cohen. On
May 16, the day after concluding the settlement with the mayor, he made a public
statement, saying:
This union does not work with non-union men. It never has, not in my memory,
and that goes back 50 years.
They walked off the job and as far as I'm concerned they're going to stay off.
This union won't work with non-union men.
•Cohen testified it was made in his presence and that he "wholeheartedly" agreed with
it. He supplied this further detail: that Meany then also said that "if any member
of Local 2 worked with a non-union man, that he himself would resign from the local
union." Cohen explained this as a "principle [of] over fifty years ... that's imbedded
in the men." The principle is also imbedded in Respondent's constitution and bylaws,
section 40(K) of which provides:
No member may work for any employer who has in his employ any journeyman
or apprentice who is not a member of the United Association.
Cohen had denied there was such a requirement until he was shown Respondent's
constitution. He then discounted it as "not according to the law of the land today
. and we abide by the laws." However encouraging this last as an augury for the
future, the fact is that the section had survived in Respondent's governing law
throughout the years since the closed shop had been outlawed, despite the numerous
revisions that this organic document has undergone in other respects. (The last
revision was in 1960.) Cohen testified that no charges have been brought under it
against any member. This was after he had earlier admitted that a member is sub-
ject to union discipline for violation of a duty imposed by the constitution. Section
40(E) requires any member to bring charges against a fellow member he knows to
have violated any provision of the governing law. And, as earlier related, Ernst
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that the inquiry he made of the complainants the morning of May I was in
performance of his duty as steward to see there were no nonmembers on the job 10.
G. The settlement and return of the strikers; the subsequent test
and the nonreturn of the complainants
On May 15, after negotiations with the mayor, Respondent agreed to call off the
strike on the understanding that the complainants would have to pass Respondent's
journeyman's test before they could go back to the job. Three took it and failed,
and none of the four ever got to work on the project.
Cohen detailed the negotiations with the mayor and the circumstances surrounding
the test. The negotiations were entirely between the city and the Respondent. Their
underlying premise was that the plumbers would not go back if it meant their work-
ing with nonmembers. So the city centered its efforts on the complainants being
given the opportunity to become union members. In the belief that this was being
denied them for reasons of race or nationality, the rights commission summoned
Respondent before it on May 4, under its fair employment ordinance, after which
Respondent issued its first statement to the press denying racial discrimination. How-
ever, the pertinent aspects of that meeting were given in the press statement of May 8
and amplified by Cohen at the hearing. Respondent declared that it had informed
the commission on May 4 that its executive board would meet that night to receive
applications from the complainants, in which event they would first be "investigated"
and then given the journeyman's test, in the same manner as "all other members in
the past," but that complainants did not appear. The ensuing negotiations centered
around shortcutting the procedure. Cohen testified the "investigat[ion]" would have
been to verify complainants' having had the minimum 5 years' apprenticeship needed
under the Respondent's rules to make them eligible to take the journeyman's exami-
nation, and that the commission wanted Respondent to give it at once. This was
taken up at the membership meeting of May 6, over which Cohen presided. The
press release stated that:
. the members refused to allow any alteration in our regular procedures. The
door is always open but these four men will not get preferential treatment. This
is discrimination in reverse and we are just as much opposed to that form of
discrimination as any other.
Cohen testified that after this the mayor asked him to agree to a stepped-up exami-
nation "on [his] own," and that he demurred because this would so sour the member-
ship on him as to impair his chances of reelection. The mayor then enlisted the aid
of AFL-CIO President George Meaney. The latter, meeting with Cohen and the
other union officials, asked them as a "favor" to him to accede to the mayor's request.
Cohen testified that "regardless of what the members had mandated" they finally
agreed to "go along" out of "respect [for] George's opinion and his position." Meany
then took them to the mayor and there on Friday, May 15, it was announced to
reporters, photographers, and civil rights groups that the strike was "settled." The
terms have been mentioned: the members would return to the job, but the com-
plainants were to return only if they passed Respondent's written journeymen' s exam-
ination. This was set for Monday evening, May 18. Astrove, who had not been
consulted, first learned of the settlement terms in a call made to his home by a city
official the next day, Saturday. He met the returning strikers at the project Monday
morning. The complainants too showed up, and as they were about to repeat the
routine of reporting to Foreman Mucci, he cut them off by saying, in the presence
of the other plumbers, that they were not "hired." Astrove testified he did so pur-
suant to his conception of what was now expected of him under the terms of the
settlement , as described to him. The complainants departed and the other plumbers
resumed work.
10 Under the proviso to Section 8(b) (1) (A), union rules and purely "internal" dis-
ciplines in enforcement thereof (le., those limited to finding, suspending, or expelling a
member from the union, as distinguished from reprisal against him on the job or violence)
are not unfair labor practices under the Act. Local 283 United Automobile Workers
(Wisconsin Motor Corporation), 145 NLRB 1097. They are, however, properly consid-
ered as evidence bearing on the purpose or motive of union conduct within the Board's
cognizance under the Act. Cf International Typographical Union et at (American
Newspaper Publishers Association), 86 NLRB 951, 969-974, enfd. as mod sub nom
American Newspaper Publishers Association v. N.L.R.B., 193 F. 2d 782, 788-789 (C.A. 7),
cert. denied 344 U.S. 812 ; Local 3, International Brotherhood of Electrical Woi hers (New
York Telephone Company), 140 NLRB 729, 740.
LOCAL UNION NO. 2, UNITED ASSN. JOURNEYMEN, ETC. 1103
Concerning the test, Cohen described the discussion regarding it on Friday, the
day of the settlement , and the atmosphere in which it was given Monday night at the
Union's headquarters . He had apparently foreseen that a test given immediately
would not afford the complainants the needed time to prepare . (Job Steward Ernst
and Foreman Mucci testified that even a seasoned journeyman would need at least
2 weeks' intense preparation for it .) Cohen related that "after all the [settlement]
festivities," he suggested to the mayor 's labor representative that they be given some
time for preparation . The latter , however, insisted it be given at the earliest avail-
able time , and so they agreed to the evening of Monday , May 18.
Rodriguez did not take the test. Allman and Borges , who learned about it in the
newspapers or on the radio , had some reservations about taking it , but after con-
sulting with NAACP counsel on Saturday evening, decided to do so. Gonzalez was
informed of it by someone in the city 's tax office about 3 hours before the examina-
tion was due to be given , and he took it too.
The rights groups wanted observers present at the examination and the results
checked . And so the examination was attended by representatives of rights groups
and of the city. Cohen described the atmosphere in the small examination room.
He testified:
And that place was jammed with everybody.
The cameras were all around the place. I couldn't for the life of me see how
they could concentrate . But that is what they wanted . They wanted to observe.
They didn 't trust. So I let them have their way. And they sat through the
entire examination.
After Respondent 's examiners graded the papers, three examiners from the city's
civil service reviewed them at Cohen's invitation . Cohen testified : "Everybody said
it was a fair examination . " And they failed ." The complainants were thereupon
informed that under Respondent's procedure , they could take a second test within 90
days, and if they failed it, a third one in 60 days, but if they failed then , they would
have to wait a year for another . Within 90 days, Borges and Allman (after brush-
ing up on plumbing theory ) reported for a second examination , accompanied by a
representative of the NAACP. This time , however, Respondent would not consent
to outsiders being present or reviewing the ratings . So the two left and never took a
second one . And all four have never been back to the job.
H. Concluding findings
1. The Union 's liability for the walkouts
a. The violation
Whatever the novelty of the setting , there is hardly room for dispute over the
determinative facts: ( a) Respondent resorted to strike action to effectuate its object
of preventing Astrove from going through with hiring the complainants; and (b)
the reason for it was that they were not members of the Union.
These are the component elements of liability under Section 8 (b)(2) and 1(A)
of the Act, in that Respondent thereby caused and attempted to cause Astrove to
discriminate against the complainants in violation of Section 8(a)(3), and it
restrained and coerced them in their right under Section 7 to join or not to enjoin a
union. The conduct did not fall within the exemption of the "union shop" proviso
of Section 8(a)(3), since in no instance may membership be made a condition of
employment before expiration of the minimum grace period thereunder ( in the con-
struction industry 7 days ) "following the beginning of such employment ," but then
only under a contract that so provides , and Respondent does not and cannot so claim
for the contract on which it here relies.
b. The nonmembership of the complainants as the true reason
for seeking to bar their employment
In the context of events as a whole, the object to bar the complainants from employ-
ment and its reason appear even in the first conversation between Astrove and Cohen.
Astrove, pleading the pressures of the rights commission, asked Cohen for clear-
ance to hire the "nonunion men." Cohen, irritated over the dilemma in which the
question thus put placed him, of either comprising Respondent's "imbedded . . . prin-
u Allman, in response to my inquiry , agreed it was.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ciple" that it "does not work with nonunion men," or of rejecting the request on a
palpably vulnerable ground, answered he "had no way of stopping" him, thereby
paying token deference to the Act; and at the same time, he indicated he was under-
taking to do just that by preferring charges against Astrove. He did this in the let-
ter of April 29 to the joint board although, as he admitted, he had no information
about the complainants pertaining to the two factors mentioned in the "priority"
clause (article 2(a), supra, footnote 3) on which Respondent purported to base the
protest. So Respondent knew nothing about how the complainants' competence or
their length of service compared with others for purposes of the "priority" it claimed
to be violated. Further, the record establishes there was no one there with whom to
make such a comparison: there were no rival bidders for these jobs whose "priority"
Respondent genuinely thought the hiring of complainants infringed. As against the
spread-eagle reference in the press releases to "members who are unemployed," there
is Cohen's own testimony of the limited basis of the protest on that score that he
claimed to have made to Astrove. He testified he based it solely on the ground that
the hiring of the complainants invaded the "priority" of a corresponding number of
plumbers from the I1 that had been "laid off." Yet even this was discredited by
Astrove's undenied testimony that these men had been discharged-a fact which
would have impelled Astrove, as earlier noted, to correct Cohen's assertion concern-
ing their "laid off" status, had Cohen mentioned those plumbers at the time, as he
testified.12 So it is manifest that the invocation of the "priority" clause to prevent
the employment of the complainants was based on no more information concerning
them than that they were "nonunion men," and that it was neither based on nor moti-
vated by a genuine belief that any plumbers' "priority" was being invaded.
c. The true object and the reason for the walkout of April30
that Respondent concededly ordered
Also bearing on the true reason for seeking to bar the complainants was the deci-
sion reached, within hours after protesting the employment of the complainants, to
call a walkout timed to just when they were due to begin work. This manifestly had
the "natural or foreseeable consequence" (Radio Officers' Union of the Commercial
Telegraphers Union, AFL v. N.L.R.B., 347 U.S. 17, 52) of "stopping" Astrove from
going through with what Cohen had shortly before told him he "had no way of stop-
ping." We need not linger unduly over whether this was also its intended conse-
quence. The claim that it was merely coincidental to a purpose to adjust the toilet
grievance was refuted by every rational element of probability bearing upon it. It
was marked by a contradictory and uncorroborated recital of the reasons for the
undue urgency with which it was claimed suddenly to have become invested. And
it was discredited by the manner in which all customary practice in respect to such a
grievance was departed from, with no explanation for the abandonment in this
instance: thus as earlier related, though it is unusual to strike over a grievance while
a meeting over it is pending, this unusual step was taken here, timed to when the
complainants were to begin work; and though it is customary in such instance to
declare only a stoppage with instructions to the men to stand by pending the out-
come, here in place of the customary declaration Respondent issued an unqualified
one to the men that they were not to work at all that day, and repeated it to Fore-
man Mucci, in reliance on which Mucci sent the complainants home.
Respondent, in the walkout thus openly called, masked its true object behind a
toilet facilities grievance that happened to have had certain contemporaneous devel-
opments. In thus dissembling its object, Respondent betrayed a purpose to hide the
only thing it could have a motive to conceal-the true reason for its action. Under
controlling legal doctrine, Respondent thereby contributed further to the conclusion
that its true reason was the legally impermissible one.13 By its conduct beginning
with Cohen's first conversation with Astrove and culminating in the barring of com-
plainants from the employment which was about to commence on April 30, Respond-
12 The uncorroborated testimony of Margaretta that during his protests over the toilet
facilities he also inquired of Astrove and Astrove's superintendent about whether there
were any job vacancies for "unemployed" member plumbers and that he received a
negative answer is not credited.
>a Cf. Sandy Hill Iron & Brass Works, 69 NLRB 355, 377-378, enfd 165 F. 2d 660
(CA. 2) ; N L.R.B. v. E. C. Brown Co., 184 F. 2d 829, 831-832 (C.A. 2) ; N.L.R B. v.
Condenser Corporation of America, 128 F. 2d 67, 75 (C.A 3) ; N L R.B. v. Lester Bros,
Inc., 301 F. 2d 62, 67-69 (C.A. 4) ; Pratt & Whitney Aircraft Division of United Aircraft
Corp. v. N.L.R B., 310 F. 2d 676 (CA. 5) ; N.L R B. v. Eclipse Moulded Products Com-
pany, 126 F. 2d 576, 581 (C.A. 7) ; N.L.R.B. v. C. W Radcliffe, et al ., d/b/a Homedale
Tractor & Equipment Company, 211 F. 2d 309, 314 (C A. 9).
LOCAL UNION NO. 2, UNITED ASSN. JOURNEYMEN, ETC. 1105
ent violated Section 8(b) (2) and (1) (A). It was an attempted and an accomplished
discrimination against the complainants in violation of Section 8(a)(3).
d. The true complicity of the Union in the walkout beginning May 1
The conduct from May 1 on was an extension of the same violation. It contin-
ued-as it was calculated to do-what Respondent had achieved on April 30, and
with like resort to concealment, only this time of its complicity. Respondent still
claims it was not responsible for that action because. (a) it "did not call a strike on
this job"; (b) "neither Cohen nor Margarita [sic] were on the job that day" and
there is no evidence that they "made any statement . . instructing, advising, order-
ing, or inducing any member . . . to walk off the job"; and (c) Ernst, the job stew-
ard, had the function "only ... to report grievances to his Business Representative,"
,and "[under] the collective bargaining agreement [is] specifically prohibit[ed] from
calling a strike." The assumption that the Union is thereby legally insulated from a
walkout of its members has been rejected by the Board and the courts since the
earliest cases arising under Section 8(b). In International Union, United Mine
Workers (Jones & Laughlin Steel Corp.), 83 NLRB 916, enfd. as mod. 184 F. 2d
392 (C.A.D.C.), cert. denied 340 U.S. 934, the Board stated:
Although there is no direct evidence that Respondent [the union and its presi-
dent] issued a strike call, that is not determinative of the question of their
responsibility. For we nevertheless find . . . that the Respondents, though scru-
pulously avoiding any outward appearance of participation in the strike, actu-
ally instigated [it] ... As we have recently had occasion to observe [Great A & P,
81 NLRB 1052, 1057]:
A strike call may be given in forthright fashion, or informally in a
manner which is understood by the initiated. A strike may be as effectively
signalled by a simple statement that an employer has refused to sign a
collective bargaining contract when the union policy is "No contract-no
work," as by a direct strike call from the union leadership to the union
members on the failure to reach agreement on a new contract.
It is true that there is no direct evidence on how the Respondents called
the meat market employees out on strike. But the critical question is not
how the Respondents gave the strike call, but whether, no matter how, they
did give it....
Here, unlike there, Respondent in any event endorsed the strike and its purpose.
The press releases, which fully endorsed the walkout, the meeting of the strikers
presided over by Cohen, in which the terms of returning to the job were discussed,
and Respondent's negotiations with the city, with its irreducible premise that the
men would not return on any basis inconsistent with the tradition that "this union
does not work with nonunion men" constituted a ratification of the walkout and the
strikers' openly declared purpose without regard to whether Respondent had a hand
in the original instigation . For the criterion is whether the circumstances taken as
a whole indicate that the Union gave its approval to the action taken.14 Moreover,
under controlling doctrine, Respondent can hardly claim to be divorced from the
actual "instigation." Just as "a strike can be signalled by a simple statement that an
employer has refused to sign a ... contract where the union policy is "No contract-
no work" (United Mine Workers case, supra), so too can one "be signalled by a
simple statement" of the kind here made by the "skinny" plumber in the steward's
presence to his fellows, when the Union's "imbedded" policy is "No all-union force-
no work." Especially is this so when its governing law, under the penalties there
prescribed, commands the members to respond to that signal in the manner they did.
14 Cf Sunset Line & Twine Company, 79 NLRB 1487; United Mine Workers v Meadow
Creek Coal Co, 263 F. 2d 52, 63 (CA. 6) ; Local 5881, United Mine Workers (Grundy
Mining Company), 130 NLRB 1181; United Packinghouse Workers of America, Local
367 (Pfaelzer Bros.), 114 NLRB 1279; Local Union 825, International Brotherhood of
Operating Engineers (Carleton Brothers Company), 131 NLRB 452; Englander Company,
Inc., 108 NLRB 38; Millwrights' Local 2233, United Brotherhood of Carpenters etc
(Farnsworth if Chambers), 122 NLRB 300; United Brotherhood of Carpenters (Endicott
Church Furniture), 125 NLRB 853; Local 760, International Brotherhood of Electrical
Workers (Roane-Anderson Company), 82 NLRB 696; Randolph Corporation, 89 NLRB
1490, enfd. as mod. sub nom. Progressive Mine Workers of I merica, International Union
v. N L.R.B., 187 F. 2d 298 (C.A. 7) ; Los Angeles Building and Construction Trades
Council ( Standard Oil Company of California ), 105 NLRB 868
789-730-66-vol . 152-71
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While the contract specifically states that the job steward has no authority to order a
strike, he has the conceded function to be on the lookout for the kind of thing which
the governing law by its own terms commands the members to strike against without
waiting for orders. Further, his function to report anything out of line to the business
manager would have impelled him at once to inform that official of what occurred.
He either did so or he had every assurance that such communication was unnecessary.
Ernst and his fellows were not operating in a vacuum. The pattern for Friday was set
by what the officials did on Thursday. The "baloney" which greeted Margaretta's
explanation of the toilet grievance as the cause for the ordered walkout on Thursday,
taken in connection with the departure from customary practice concerning such a
grievance, would, in the perspective of the whole day's events, cause them to link
the strike call with the very matter they had been discussing just before the walkout
order-the anticipated arrival of the new plumbers.
Indicative of what Respondent's actions reasonably conveyed to the men on
Thursday was Job Steward Ernst's failure to recall on his own, and before reminder
from Respondent's counsel, that the reason for the walkout on Thursday was any
different from the one on Friday. The activity into which Respondent is shown to
have been galvanized by Astrove's announcement that he was hiring the "nonunion
men" renders it hardly likely that having gone this far on Thursday, it would now
precipitately cease seeing its object through. The contrary appears from, among
other things, (a) Business Agent Margaretta's telling Gonzalez that the men would
continue to strike to prevent Astrove from hiring him and his three companions; (b)
President Cohen's appearance on the project on Thursday to make "sure everything
was in order," and his seeing no variance from that purpose in the fact that Mar-
garetta, in place of the customary order for a mere temporary work stoppage, had
ordered that the men not work at all that day, with the result that by the time the
facilities grievance was settled, the complainants, like the other plumbers, were no
longer around to work; (c) Cohen's nonparticipation in the discussion of the griev-
ance, which was assigned as the reason for the strike call, and devoting his brief
appearance there to talking only with Astrove about the complainants; and (d) his
repeating to Astrove the "no way of stopping" avowal which he had earlier used as
the prelude to that very morning's pointed demonstration of the reverse. All of
which would indicate the strongest motivation on Respondent's part to keep in close
touch with developments at the project on Friday concerning the complainants. That
it did so is fairly indicated by Cohen's total familiarity with the situation during his
contacts with the city's officials and with the press.
In the context of the whole set of circumstances fully detailed heretofore, it is a
fair inference that well before Respondent openly endorsed the strike action, it laid
the groundwork for assuring that it would occur, so as to continue on Friday what it
had accomplished on Thursday in achievement of its original object. "As against
the hypothesis that this was a sheer coincidence, `the probable inference which com-
mon sense enlightened by human knowledge '[would] draw from [this sequence]'
[Masterson v. Harris County, 15 S W. 2d 1011, 1014 (Tex.) 67 A.L.R 1324, 1329]
is that the declarant of a purpose which is effectuated the next day by men who are
subject to his instructions had a responsible hand in that action." Local 825, Interna-
tional Brotherhood of Operating Engineers (Carleton Brothers Company), 131 NLRB
at 462.
On the facts as a whole, it is concluded that Respondent authorized, ratified, and
adopted the walkout beginning May 1 and its purpose to force Astrove from going
through with hiring the complainants, because of their nonmembership, thereby caus-
ing and attempting to cause them to be discriminated against in violation of the Act.
e. The contention concerning the "rights" of members as "individual
plumbers" not to work with nonmembers
Respondent claims insulation as a union from the May 1 walkout of its members on
still another basis that harks back to fundamentals. It would hardly be necessary to
treat this but for the legal assumption which needs to be dispelled in order to enhance
the prospects of compliance with such remedial order as is warranted by the viola-
tions found.
Respondent characterizes the walkout as but the conduct of the "individual plumb-
ers [who] decided to walk off rather than work with nonunion men" and that this was
their "right." This hardly takes it out of the category of a concerted refusal to work.
Concerted action of necessity calls for individuals to engage in it. The devotion of
the individual to the purpose insures the success of the effort. Organized groups
depend upon it, and unions are no exception The union policy may command the
consummate loyalty of the actors, but it is as union members that they act, and where
a union commands that action in its governing law, and further embraces it in the
LOCAL UNION NO. 2, UNITED ASSN. JOURNEYMEN, ETC. 1107
comprehensive respects already detailed, then it is union action. As the Board
observed in the earliest and now classic case, in which such a defense was treated. 15
When individual action not only is reserved but is commanded by group deci-
sion, it ceases to be individual and becomes collective action.
The Union, in these circumstances, is responsible for the collective conduct of the
members, and if the conduct is one the law forbids a union to "engage in," then it will
be held to have so "engage[d]" unless it takes affirmative measures of disengagement,
by at least commanding the offending membership to stop it This would seem self-
evident, and is the premise underlying the entire body of Board and court decisions
concerned with union responsibility. As stated in United States v. International
Union, United Mine Woikers, 77 F. Supp. 563, 566 (D.C.D C.), affd. 177 F. 2d 29
(C.A.D.C.), cert. denied 338 U.S. 871.
as long as a union is functioning as a union it must be held responsible
for the mass action of its members. It is perfectly obvious not only in objective
reasoning but because of experience that men don't act collectively without
leadership.
So it is astonishing to encounter the following in Respondent's brief concerning the
action of the "individual plumbers":
This is their right, as George Meany stated, and no one can compel an individual
to work on a job against his will.
One notes that counsel does not attribute to his distinguished source the second
part of the sentence. Its sweep is one that unions would be the first to renounce.
Successful unionism, as all successful organization, depends upon the acceptance in
advance by free men engaged in a common pursuit of certain restrictions in deference
to the common interest and purpose of the group. As applied to unions, unless they
could exert some compulsion on members concerning when not to work (as in the
case of a strike for better conditions) or when to go back to work (as when it acts to
stop "wildcat" activity on the part of dissidents), they could not hope to function.
Respondent's own use of that power of compulsion is reflected in its governing law,
which subjects its members to penalties for disobedience of the provisions in respect
to when or where they may not work (a prime instance being the much-discussed
section 40(K)), and as to when they must work (as for example, its section 40(N),
which requires that "members shall live strictly up to trade agreements," and pre-
scribes drastic penalties for its violation). So vital is this power to unions that Con-
gress, in recognition of it, stated in the proviso of Section 8(b) (1) (A) that it "shall
not impair the right of a labor organization to prescribe its own rules with respect to
the acquisition or retention of membership." The Board has construed this to apply
to unions' internal disciplinary powers in enforcement of its rules (See Local 283
United Automobile Workers (Wisconsin Motor Corporation), 145 NLRB 1097),
including fines upon members for failure to obey a strike order. Allis-Chalmers
Manufacturing Company 149 NLRB No. 10. The part of the law that embraces the
restrictions on unions contemplates that unions shall exert their "not impair[ed]"
right to enjoin on the membership what the law enjoins on them as unions, that is to
say, just as a union exerts its authority on the membership in respect to "living up to"
agreements to which the union has bound itself by contract, so too will it exert its
authority in respect to "living up to" the requirements by which it has become bound
as an association within a society operating under the rule of law.16
15lnternational Typographical Union (American Newspaper Publishers Association),
86 NLRB 951, 1009, enfd as mod sub now. American Newspaper Publishers Association
v N L.R B , 193 F 2d 782 (CA. 7), cert. denied 344 U S. 812,
1e As applied to a concerted refusal of members to work with nonunion men, the courts
have upheld the Board in determining that a union is responsible therefor under its
obligation under Section 8(b) (2) and (1) (A) of this Act, where it knows of and has
acquiesced in the conduct, or the action has been led by a steward who had the ostensi-
ble, even if not the actual, authority to do so. N L R.B v Local 815, International
Brotherhood of Teamsters etc. (Montauk Iron & Steel Corp.), 290 F 2d 99 (CA. 2) ;
N.L R B. v. Local 138, International Union of Operating Engineers et at (Nassau
& Suffolk Contractors' Assn), 293 F. 2d 187, 194 (CA. 2) ; AT L R.B. v. International
Brotherhood of Teamsters (The Lane Construction Co ), 228 F. 2d 83 (C.A. 2) ;
N L.R.B. v. International Brotherhood of Teamsters, Local 249 (Lancaster Trans-
portation Co.), 249 F 2d 292 (CA 3); NL.R.B v. United Brotherhood of Carpenters,
Local Union No. 55 (Grauman Company), 205 F. 2d 515 (CA. 10) , NLRB. v Interna-
tional -Longshoremen's & Warehousemen's Union, Local 10 (Pacific Maritime Assn ), 283
F. 2d 558, 566-567 (CA. 9) ; N.L.R.B. v. International Brotherhood of Boilermakers etc.
( Combustion Engineering ), 321 F 2d 807, 811 (C.A. 8).
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The issue of the legality of the "priority" clause
a. Introduction, applicable criterion
We have until now assumed with Respondent that its "priority" clause, article
2(a), is legal The conclusion heretofore stated is that Respondent's conduct was
nevertheless illegal because its motive was to enforce not the priority requirements,
even assuming the legality of the clause, but its tradition against "work[ing] with
non-union men." The General Counsel, however , disputes the assumption and
claims that the clause , interpreted in total context, is a veiled form of insuring the
only kind of hiring condition under which Respondent's governing law permits its
members to work-a closed shop. He contends that the clause accordingly adds to
the evidence of the illegal motive for the conduct previously reviewed and, in addi-
tion, that it is a continuing discrimination upon nonmembers as a class, and that
Respondent should be found to be thereby engaging in a subsisting violation of Sec-
tion 8(b) (2) and (1) (A) of the Act beyond the specific violation here found to have
been committed.
Something should be said about the manner of approaching such an issue. The
courts have adjured us to a counsel of moderation in passing upon the validity of
contract clauses: that we avoid condemning a provision capable of an interpretation
which can spare it from being so condemned unless the illegal purpose is manifested
by its specific application and, unless also (as would seem implicit), the application
found to be illegal is what for all practical purposes gives the provision its meaning.
Cf. N.L.R.B. v. News Syndicate Company et at., 365 U.S. 695; Local 138, Interna-
tional Union of Operation Engineers v. N.L.R.B. (J. J. Hagerty), 321 F. 2d 130, 135
(C.A. 2).
b. The disputed clause and the opposing positions
The provision , with its title and its two subdivisions , reads:
Article 2
Union Security
(a) The Association agrees that its members will give priority in employment
opportunity to qualified and competent men based upon their length of employ-
ment in the geographical area of the Union, as contrasted and compared with
men who have worked mainly in other geographical areas. The previous hiring
practices in all respects shall continue including practice as to qualifications and
competency, and furthermore members of the Union may be hired as in the
past without regard to prior length of service.
(b) In the event that during the term of this Agreement there is a change in
the law which will permit a greater degree of Union security to the Union, such
Union security provided in (a) above, shall be modified so as to provide the
maximum degree of Union security permitted by such change in the law.
Respondent, in advancing article 2 (a) as the defense for its conduct , has quoted the
first sentence and claims it to be based on Section 8(f) (4) of the Act, declaring as
legal contracts made in the construction industry that contain hiring requirements of
a related character. The General Counsel, on the other hand, has quoted the second
sentence , which he claims is the joker when considered along with the conduct and
with section 40(K) of the constitution and bylaws , forbidding members to work
for employers that employ nonmembers. Respondent urges that any impact of
section 40(K) on article 2(a) is neutralized by article 17(c) of the contract, which
provides that in the event of a "conflict" between the contract and the constitution
and bylaws , the contract shall be "controlling." In rejoinder , the General Counsel
points to the next sentence of the same article that provides that in that case the
parties will cause to be made "appropriate changes" in the consitutiton to make it
"consistent" with the contract . On the basis of the admitted fact that section 40(K)
has not been changed, he urges that the parties contemplated an application of
article 2 ( a) "consistent" with section 40(K). Although Cohen , during his testimony,
said he thought a change in section 40(K) is quite overdue, this seems not reflected
in the position taken in Respondent 's brief. The position in the brief is that Cohen's
testimony that no member has been brought on charges under it shows it to be a sort
of dead letter, and so: "The employer is not required [under 2 (a)] to do anything
which would violate the law."
c. Indication of compulsory membership intention
Since, as is not contended otherwise, the contract contains no requirement for
compulsory membership after the minimum grace period of the kind the Act allows,
LOCAL UNION NO. 2, UNITED ASSN. JOURNEYMEN, ETC. 1109
the logic of Respondent's assertion is that the contract contemplates no require-
ment of compulsory membership at any time during employment even to the extent
permitted by law. But the difficulty with leaving the matter on that basis is that it
hardly accords with the intense interest in memberhhip reflected in Respondent's
tradition. A union that throughout the years has had its members under obligation
not to work for an employer who employs nonmembers would hardly be likely thus
to renounce putting the employer under some correlative restriction against employ-
ing nonmembers for its members to work with.
The mutual assumption that the Employer has been put under some stricture
would seem reflected in the title given to article 2, and in the manner in which Cohen
referred to it-"union security." Ever since labor itself coined or gave currency to
it in disputes before the National War Labor Board of World War II as a sympa-
thetically tinged designation for it, that term has been commonly understood in indus-
trial parlance to stand for a clause that requires membership as a condition of employ-
ment on some basis. That the parties used it in the same sense here would seem
cogently reflected in subdivision (b) of article 2, which provides that in the event
of a change of law permitted a "greater degree of union security," article 2(a) shall
be modified "to provide for the maximum degree of union security permitted by
such change in law." This persuasively indicates that the parties mutually under-
stand that article 2(a) contemplates a "degree of union security" for Respondent no
less than the "maximum permitted by [the present] law."
d. Indication of intention to, make membership compulsory
as of time of hiring
Does it contemplate no more? If so, there would have been no better way so to
provide than in the clear language of the Act, which is ordinarily found in contracts
where no more is contemplated. Section 8(f)(2) (which adapts the "union shop"
proviso of 8(a)(3) to the construction industry) provides that a contract is permis-
sible in that industry which:
requires as a condition of employment, membership in such labor organ-
ization after the seventh day following the beginning of such employment or
the effective date of the agreement , whichever is later ....
The "union security" clause under consideration here says nothing about the
requirement of membership taking effect "following the beginning of ... employ-
ment." It talks only as of the time of hiring, so on the premise that it contemplated
some kind of compulsory membership requirement, it would be as of the time that
that provision speaks, which, indeed, is the time it was invoked against the
complainants.
e. The "previous hiring practices" as controlling the stated "priority" criteria
Another difficulty with Respondent's assertion that the clause contemplated even-
handed "priority" standards of the kind sanctioned by Section 8(f) (4) is that there
too it fails to avail itself of the clear language of the statute. Section 8(f) (4) states
that an agreement may be made in the construction industry which:
specifies minimum training or experience qualifications for employment or
provides for priority in opportunities for employment based upon length of
service with such employer, in the industry or in the particular geographical
area...
The "priority," or first, sentence of article 2(a) does not "specif[y] minimum train-
ing or experience qualifications," but states as the first criterion "competent and quali-
fied men" without clarifying specification. Also, instead of, as in Section 8(f)(4),
being mentioned as a separate category distinct from "length of service," the first
blends into the second so as to drain either of meaningful identity. This is not to
say that both standards may not be applied together: manifestly, the section permits
requiring employment of persons meeting the minimum experience standards, and
as between them giving priority based on length of service in any of the respects
there indicated. But while thus capable of being applied at the same time, they are
two distinct standards in the manner that the statute states them to be. The clause
here under consideration blends the first into the second and the second is further
qualified by language not appearing in Section 3(f)(4). Thus, priority is required
for "qualified and competent men based upon their length of employment in the
geographical area of the Union" and the latter is in turn stated to be "as contrasted
and compared with men who have worked mainly in other geographical areas."
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ordinarily, one might leave it to the parties to extract whatever nondiscriminatory
meaning they could find workable. But the nature of the issue before us and a
record showing resort to contrived obscurity for impermissible purposes in other
respects leads one to inquire why obscurity was resorted to here where clarity
was so easily achievable in the language of the statute.
One would be rather hard put to know what was expected of an employer under
the first sentence. Astrove was not specifically asked what it conveyed to him, but
if his asking Cohen for clearance to hire the "nonunion men" is a fair indication,
one can hardly escape the impression that he and employers like him would find
more meaning in the second sentence, which Respondent's protest to the Plumbing
Industry Board omitted than in the first, which it stressed. An employer immobil-
ized by the 27-word modifier of "qualified and competent men" in the first sentence
can get moving again by looking to the second sentence, which advises him that if
the applicant is a union member he need not be concerned with that puzzler, since
"members of the Union may be hired as in the past without regard to prior length
of service " This, of course, as the General Counsel contends, is a discriminatory
preference on its face, because what is mandatory in the first sentence in respect to
applicants as a class may be dispensed with as to members.17 If the employer should
nevertheless be considering a nonmember, however satisfied he may be that the
applicant is a "competent and qualified" man, and merits top rating under the
involved "based upon" qualification howsoever interpreted, he is faced with the
requirement that: "The previous hiring practices in all respects shall continue
including practice as to qualification and competency."
This manifestly includes the "respects" spread large on this record-the "imbedded"
principle that the Union does not work with nonmembers and the command in the
governing law on all members not to work for an employer who hires nonmembers.
Respondent's failure to change section 40(K) in accordance with article 17 of the
contract, calling for "appropriate changes" in its laws in "conflict" with the contract,
is thus hardly inadvertent. Far from being in conflict, the two clauses are inter-
functioning parts of one apparatus- under Section 40(K) members may not work
for employers who employ nonmembers, and under article 2(a) the employer may
not employ nonmembers for them to work with. The first forbids it outright, because
whatever the illegality of the practice it commands, the Act, by virtue of the excepting
proviso of Section 8(b)(1)(A), does not reach the embodiment thereof in a union's
internal membership laws (supra, footnote 10); and the contract does so in code
language, since to do so explicitly would be an open declaration of its illegality under
Section 8(a) (3) and 8(b) (2)-at least until some future change in law, as envisioned
in article 2(b), which would dispense with the need for cryptic phraseology.
f. The "competent and qualified men" criterion as synonomous with membership
Thus, article 2(a), though couched in language of "priority" is not such at all-
within its crypts is the requirement to hire only from the ranks of the Union Even
the innocent-appearing phrase "qualified and competent men" is not free of it In
place of the "specific[ation of] of minimum training or experience qualifications,"
called for by Section 8(f) (4) of the Act, there is the provision in article 2(a) which
includes "practice as to qualifications and competency" among the "previous hiring
practices" that must "continue." This contemplates men certified as "competent
and qualified" within the framework of Respondent's membership procedure; that is
to say, within its own apprenticeship program. Respondent understandably has the
profoundest confidence in it, as do craft unions generally that have established
apprenticeship programs. Presumably, they feel that the best assurance of high
standards in the craft is through their control of the hiring process. Yet though
these considerations were advanced to Congress when it enacted the Taft-Hartley
Law in 1947, Congress chose to give greater weight to the consideration favoring an
open employment market at the hiring stage Accordingly, under Section 8(a)(3),
it outlawed the closed shop and permitted compulsory union membership only after
a minimum grace period. The conviction that this compromised the standards of
their craft perhaps explains in part the persistance among some craft unions of the
17 See, e.g ., Local 138, International Union o f Operating Engineers v. N L R B (J J.
Hagerty), 321 F. 2d 130, 135 (C.A. 2), where two items were found discriminatory be-
cause hinging in each instance on union membership ; namely , seniority and participa-
tion in welfare benefits The court there cited Radio Officers' Union of the Commercial
Telegraphers Union, AFL v. N.L.R.B. (A. H. Bull Steamship Co.), 347 U.S. 17, 34-42;
cf. N.L.R.B. v. Sightseeing Guides and Lecturers Union Local 20076 (ABT Sightseeing
Tours, Inc ), 310 F. 2d 40, 41 (C.A. 2) ; N.L R.B. v. International Brotherhood of Elec-
trical Workers, Local 840 ( Walsh Constr . Co ), 301 F. 2d 824, 825 (C.A. 9).
LOCAL UNION NO. 2, UNITED ASSN. JOURNEYMEN, ETC. 1111
closed-shop tradition and provisions in their governing laws requiring adherence
thereto on the part of its members. This hardly exempts them from the Act's
prohibitions. Yet, much of the case lore from the time of its enactment, and begin-
ning with the now classic ITU case (supra, footnote 15) arose from the efforts (and
the legal misadventures that came in their wake) to maintain the tradition and at
the same time steer clear of liability. These proved to be opposite-running horses
that could not be straddled by the same rider. The prohibition against the closed
shop still stands. Congress sliced it a bit thinner for the construction trades 12
years later in the respects with which we have been discussing; in Section 8(f)(2)
it cut the minimum grace period for compulsory membership by nearly three quarters,
yet the restriction against a requirement of membership at the time of hiring con-
tinues; in Section 8(f)(4) it permitted "specifie[d] minimum training and experience
qualifications for employment," yet it did not intend this as an escape hatch from
the prohibition here in issue. To foreclose that possibility, Congress added to Section
8(f) the following: "Provided, that nothing in this subsection shall set aside the
final proviso to section 8(a) (3) ......
g. Invalidity of use of "competency" standards to surmount the 8(a)(3)
restrictions on union-security provisions
The "final proviso" of Section 8(a) (3) qualifies the "union shop" proviso by pro-
hibiting discrimination where:
. membership was denied or terminated for reasons other than the failure of
the employee to tender the periodic dues and the initiation fees uniformly
required as a condition of acquiring or retaining membership; .. .
Under it, employees have been held to have been illegally discharged where member-
ship was denied for failure (a) to take the oath of membership, (Union Starch &
Refining Co., 87 NLRB 779, enfd. 186 F. 2d 1008 (C.A. 7), cert. denied 342 U.S.
815); or (b) to attend a meeting for the purpose of being initiated (United Brother-
hdOod of Carpenters etc (Brunswick-Balke-Callender), 115 NLRB 518); or (c) to
pass the union's journeyman's test under its apprenticeship program (A. Nabakowski
Co., 148 NLRB 876). In Nabakowski, the Board held illegal the discharge of
two employees because they failed to pass the Union's test for journeyman status,
which was the prerequisite for attaining membership. The Board held it to be no
defense that the contract had a valid union-security clause and also a clause requiring
the employer to hire only journeymen. Deeming the issue to be controlled by the
final proviso of Section 8(a) (3), the Board adopted Trial Examiner Funke's rationale,
as follows:
It was precisely for the purpose of outlawing union control over conditions of
employment that the Congress enacted Section 8(a)(3) with its narrow excep-
tion. If there was any doubt, that doubt was dispelled by the U.S. Supreme
Court in the Radio Officers case [347 U.S. 17], where, [at] pages 40 and 41,
it stated:
The policy of the Act is to insulate employees' jobs from their organizational
rights. . . The only limitation Congress has chosen to impose on this
right [of an employee under Section 7 to join or not as he pleases] is speci-
fied in the proviso to Section 8(a) (3) which authorizes employers to enter
into certain union security contracts, but prohibits discharge under such
contracts if ... "membership was denied ... for reasons other than the
failure of the employee to tender [uniformly required] periodic dues and
initiation fees...." Lengthy legislative debate preceded the 1947 admend-
ment to the Act which thus limited permissible employer discrimination.
[It] clearly indicates that Congress intended to prevent utilization of union
security agreements for any purpose other than to compel payment of
union dues and fees. . . . No other discrimination *-ned at encouraging
employees to join, retain membership, or stay in go- ,sanding in a union
is condoned." [Emphasis supplied.]
h. Conclusion as to legality of article 2(a)
If the employee's job may not be conditioned on the outcome of a journeymen's
test even under a valid requirement of membership as a condition of employment,
all the more may it not be so conditioned where there is no such valid requirement
in the first instance. Yet that is the manifest intendment of article 2(a) and what
underlies the omission from its "competent and qualified men" criterion of the
"specifi[city in respect to] minimum training experience requirements" that Section
1112 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
8(f) (4) speaks of. The term used in 2(a) derives its specificity from what the next
sentence speaks of: perpetuation of "the previous hiring practices in all respects .. .
including practice as to qualifications and competency." That is the criterion con-
templated, and "competent and qualified men" means men certified as such under
the Union's membership procedures. The interchangeability of the concepts of
membership and competence was manifested by the transition Cohen made from the
mere statement by Astrove that he was hiring "nonunion men." This without more
condemned them on the score of "competen[ce] and qualifi[cations]" under 2(a),
which he at once invoked The same interchangeability is reflected in his testimony:
he first quoted Astrove as saying he was hiring "nonunion men," and then as saying
"not competent" or "not qualified" men. The interchangeability is rather inevitable
from the nature of the "previous hiring practices," and their perpetuation in
article 2(a).
The provision is thus found to contemplate and to require membership as a condi-
tion of employment, contrary to the restriction of Section 8(a)(3). By maintaining
it, Respondent, separately and apart from the specific violation in respect to the
complainants, has caused and attempted to cause nonmembers as a class to be
illegally discriminated against, thereby violating Section 8(b)(2) and (1)(A) of
the Act.18
IV. THE REMEDY
A. The proposal to give superseding effect to the strike settlement
Where a violation is found, the normal course is to prescribe a "remedy," consist-
ing (along lines detailed in the next section) of two parts, the first requiring the
offender to "cease and desist" from the violation and the other to take "affirmative
action" to undo its consequent injury.
Respondent proposes that that course be dispensed with here in deference to its
strike settlement with the mayor. It admits that this hardly accords with "the gen-
eral principle that the ... Board will not recognize any settlement to which it is not
a party and give its approval," but urges this case has "unique" circumstances, which
require overlooking that omission "as a matter of public policy." It was in defer-
ence to the policy of "administering this Act in harmony with other important
policies" (Ritchie Manufacturing Company, 147 NLRB 1257) that I admitted a
full recital of the circumstances of the strike settlement into the record. In Respond-
ent's brief I see no weight accorded to the public policies of the Federal statute under
which this proceeding arises. Thus there has been no effort to fulfill the purpose of
receiving that evidence, to show how the proposal to forgo a remedy for the violation
here found harmonizes or is in reasonable balance with the policies of the Federal
statute. For the following reasons, I find no warrant for omitting an appropriate
remedial order.
(1) The Board did not participate in the settlement with the city, nor was that
matter ever broached to it as a basis for disposing of the issues of this proceeding.
A proceeding before the Board is a "public proceeding" concerned with enforcement
not of private rights (for "the Act does not create rights for individuals," Phelps
Dodge Corp. v. N L.R.B., 313 U.S. 177, 194), but of "public rights" created by
Congress in aid of the "large public policy" sought to be promoted. Ibid. Any
settlement looking toward foreclosing further Board action must of necessity be
submitted to the Board for approval, as the exclusive "public agent" for effectuation
of those rights. Amalgamated Utility Workers v. Consolidated Edison Company,
309 U.S. 261, 270.
(2) None of the persons affected by the conduct of Respondent, whom the Board
normally consults before passing on a proposed settlement , were consulted in this
instance . Neither the complainants nor Astrove knew about it until after it was
already an accomplished fact.
(3) The settlement did not-as it must at least do to be effective as to the Board-
purport to deal with the subject and dispose of the offense claimed in the proceeding
before the Board. There is no evidence that the mayor sought to deal with the unfair
Is Respondent cites Painters District Council No 9 etc. ( Central States Painting and
Decorating Company), 147 NLRB 79 The Board there upheld the legality of an
evenhandedly applied contract requirement that 75 percent of persons newly hired on
a project shall be from among residents in that area. It also held that a union could
validly ask one of its members , to whom the employer granted "sudden elevation to
journeyman status . . . to see [his ] union book as evidence of his changed status,"
i.e., that he had met the requirements therefor under the union's apprenticeship program.
He was asked to show his book not to demonstrate his membership , for he had that,
but his completion of prerequisites for the status under the very program to which he
subscribed as a member.
LOCAL UNION NO. 2, UNITED ASSN. JOURNEYMEN, ETC. 1113
labor practices, or to dispose of them. But even if we were to make the most improb-
able assumption that he did, the paramount Federal interest would preclude defer-
ence to a settlement repugnant to the Federal statute.
(4) The underlying assumption of the settlement, that membership must be
attained as a condition of employment, was clearly contrary to the very prohibitions
of Section 8 (a) (3) and 8 (b) (2), here involved, and was thus in dii ect conflict with
Federal law. That the membership was to be attained by a test perhaps fair as to
content is immaterial. The condition itself was illegal.
(5) The settlement did not provide for discontinuance of the unlawful practices
or the posting of requisite notices giving assurance of such discontinuance. Thus the
unlawful closed-shop provision continues in effect. Also, Ernst testified that after
the strike he continued, while he was still job steward, to make the same inquiries for
the purpose of making sure there were no nonmembers on the job as before.
Thus the settlement with the mayor does not warrant omission of a remedial order.
That the employment resulted initially from intervention by the municipal authority
is not material. The protections that Section 7 of the Federal Act accords to the
complainants as employees were not subject to defeasance or divestiture by the
municipal authority. Nor would it be material that the Union, as the claimed con-
sideration or quid pro quo for its bargain with the city, waived certain of its pre-
liminary procedures in regard to membership when it gave its examination to the
complainants. The only quo for which its action was the quid was what the other
party to its bargain could give-an assurance that this disposed of the issue arising
under the city's fair employment ordinance. Respondent could not have purchased
with it an immunity under the Federal statute, which was beyond the municipality's
authority to give and which there is no indication it purported to give.
B. The remedial requirements
Respondent has been found to have violated Section 8(b)(2) and (1)(A) of the
Act in having caused and attempted to cause the denial of employment of four
persons because of nonmembership in it , and in maintaining and giving effect to a
contract provision that discriminates against nonmembers as a class.
The Recommended Order will require that it cease and desist from these practices.
The statement of Respondent's president on the stand that "we abide by the laws"
offers some encouragement concerning prospects of compliance, and largely accounts
for the rather extended treatment of fundamentals, heretofore appearing. What has
been stressed, and for the purpose of compliance bears repeating, is that inherent
in a union's obligation under the Act and now the Respondent's obligation under the
remedy, is a more affirmative view of its responsibility toward concerted cessation of
work on the part of the membership in enforcement of its closed-shop tradition. As
the law now stands, whatever Respondent's view concerning the desirability of having
a working force manned exclusively from the start by union members, it may not
institute such conditions with employers, much less exert economic or other coercion
to force employers to do so. Since article 2(a) of the contract, in the context of its
language as a whole and the uses to which it has been put, has been found to have
no practicable scope except as a device for perpetuating closed-shop hiring practices,
the cease-and-desist requirement contemplates that Respondent also cease giving
effect to article 2(a). If Respondent indeed seeks no more "union security" than
the maximum permissible under the law, the language of Section 8(f)(2) is always
available to it, and if it truly wishes to institute, on an evenhanded basis, training or
experience qualifications for employment and priority based on "length of service"
in the respects it deems pertinent, the draftsman should find a ready guide in Section
8(f) (4).
Concerning the affirmative action for a violation of the kind here found, the normal
remedy is for the union to write the employer and the affected employee that it
withdraws its objection to the employer's employing them, and to reimburse them for
their wage losses from the time of discrimination to 5 days after such notification or
until the employer actually employs them, whichever is earlier.
Respondent urges that the results of its competency tests are a barrier to each of
the above. Its position concerning the letter of notification is that it should not be
required to write one in respect to persons it deems not "competent and qualified
men" within the meaning of article 2(a) of its contract. The answer appears in the
discussion of the liability issue. First, even if the contract were valid, it would not
finding that the clause as a whole is invalid because it is a veiled form of closed-shop
jobs, which has been found not to have been a true issue here. Secondly, under the
provision, Respondent may not interpose it as an objection to Astrove exercising his
stand in the way of sending that notification, for, as previously stated, that require-
ment is pertinent to the issue of priority as between them and other bidders for their
normal employer 's prerogative.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent residually suggests that the results of the test show that the Complain-
ants would not have lasted with Astrove because he would have found them incompe-
tent, and so they lost no pay in any event. The record abounds in evidence showing
this assumption does not follow; namely, (a) Foreman Mucci's and Steward Ernst's
testimony showing that even a seasoned journeyman would have needed considerably
more time for preparation than was allotted to the complainants; (b) Cohen's testa'
mony showing that even with time to prepare, the turbulent atmosphere surrounding
the test deprived it of its character as a true gauge of their capacities; and (c)
Astrove's testimony that the test is of dubious utility for his practical needs, with
every indication that just as the journeyman's status of the 11 plumbers he discharged
on April 9 did not guarantee their suitability for the "rough job" on the project, so
would the absence thereof under Respondent's standards not foredoom an employee
to a judgment of unsuitability, and that he could determine their suitability from his
own observation (supra, footnote 4).19
The inconclusive character of the results of the test on this phase of the case was
underscored further by Foreman Mucci's testimony that he would have put the
complainants to work on cast iron, on which numerous persons in advanced stage
of apprenticeship perform, who have not yet taken or otherwise passed Respondent's
journeyman's test.
Also to be considered is that the evidence which Respondent proffers in challeng-
ing the complainants' competence is the product of a test illegally imposed as a
condition of ending a strike illegally engaged in. This raises a grave issue of public
policy concerning whether the wrongdoer has the standing to use what came out of
his wrongful act as a barrier to the remedy normally called for. To permit it to do
so would be to lend countenance to the violation and encourage future ones. The
Board has been held to be empowered to fashion even its affirmative remedies in a
manner which will avoid making them inducements to either future misconduct or
noncompliance with other portions of its remedial order. Cf. N.L R.B. v. Seven-Up
Bottling Company of Miami, Inc., 344 U.S. 344.
Finally, as Judge Learned Hand stated in an early case, it "rest[s] upon the
tortfeasor to disentangle the consequences for which it [is] chargeable from those for
which it is immune." N.L.R.B. v. Remington Rand, Inc., 94 F. 2d 862, 872 (C.A. 2),
cert. denied 304 U S. 576. Under that principle, the one entitled to the benefit of
the doubt created by the very act of the wrongdoer is not its creator but his victim.
The presumption we are accordingly required to apply here is that but for. Respond-
ent's illegal conduct the complainants would have continued on the job. Respondent
will be required to reimburse the complainants for loss in pay under the standard
make-whole formula (F. W. Woolworth Co., 90 NLRB 289) with interest (Isis
Plumbing & Heating Co., 138 NLRB 716) from April 30, 1964, to 5 days after it
writes Astrove and the complainants that it interposes no objection to his employing
them, or to the time that Astrove puts them to work, whichever is earlier.
As for posting notices, the case has a scope beyond Respondent's relations with
Astrove, since the discrimination against the complainants was an implementation of
an invalid closed-shop hiring practice embodied in a contract with an association
of which Astrove is an employer member. Accordingly the notice, in addition to
being required to be posted by Respondent, will be signed in sufficient numbers for
posting (if willing) by Astrove, the Plumbing Association, and its members over
whom the Board would take jurisdiction. Charles Ostrowski et al., d/b/a Phila-
delphia Woodwork Company, 121 NLRB 1642, 1648.
Upon the foregoing findings and the entire record, I hereby make the following:
CONCLUSIONS OF LAW
1. By causing and attempting to cause employees to be discriminated against in
violation of Section 8(a)(3) because of their nonmembership in it, Respondent
engaged in and is engaging in an unfair labor practice within the meaning of Section
8(b)(2) of the Act, and by thus restraining and coercing employees in the exercise
of their rights under Section 7 of the Act, Respondent engaged in and is engaging in
an unfair labor practice within the meaning of Section 8(b) (1) (A) of the Act.
2. The foregoing unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
16 Cohen had claimed the "competent and qualified" requirement to be grounded In
safety considerations. Astrove testified he could determine the men's competence without
hazard to anyone.
LOCAL UNION NO. 2, UNITED ASSN. JOURNEYMEN, ETC. 1115
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and on the entire record, and pur-
suant to Section 10 (c) of the National Labor Relations Act, as amended, it is rec-
ommended that Respondent Local Union No. 2 of the United Association of Jour-
neymen and Apprentices of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, its officers, agents, and representatives, shall.
1. Cease and desist from:
(a) Causing or attempting to cause any employee or applicant for employment
to be discriminated against in violation of Section 8(a)(3) of the Act
(b) Causing or attempting to cause any person to be denied employment or other-
wise discriminated against because of nonmembership in Respondent at the time of
hiring or at any time after the beginning of employment, except pursuant to a written
contract, made in conformity with the Act, which requires, as a condition of employ-
ment, membership in Respondent in the construction industry not earlier than after
the 7th day, and in all other industry, after the 30th day following the beginning of
such employment or following the execution of the contract, whichever is later.
(c) Causing or attempting to cause any of the above by threat or coercion or by
engaging or inducing or encouraging its members, directly or indirectly, to engage
in a strike, walkout, stoppage, cessation of operations, or refusal to perform services
in the course of employment, having as an object the denial of employment because
of nonmembership or discriminatory preference of members over nonmembers.
(d) Giving effect to article 2(a) of the contract with The Association of Contract-
ing Plumbers of the City of New York, Inc., or to any renewal or extension thereof,
which article is as follows:
The Association agrees that its members will give priority in employment oppor-
tunity to qualified and competent men based upon their length of employment
in the geographical area of the Union, as contrasted and compared with men
who have worked mainly in other geographical areas The previous hiring
practices in all respects shall continue including practice as to qualifications and
competency, and furthermore, members of the Union may be hired as in the
past without regard to prior length of service.
(e) Making any contract relating to the hiring of employees for the purpose of
causing membership to be a condition of hiring or granting members a discrim-
inatory preference over nonmembers, or causing or attempting to cause any provi-
sion to be applied in such manner.
(f) In any like or related manner restraining or coercing any employee in the
exercise of his rights under Section 7 of the Act, except pursuant to a contract requir-
ing membership as a condition of employment in accordance with the restrictions
thereon set forth in Section 8(a)(3) and 8(f)(2) of the Act and applied in accord-
ance with the restrictions stated in 8(b)(2) and the final proviso to Section 8(a)(3)
of the Act.
2. Take the following affirmative action, which it is found will effectuate the
policies of the Act:
(a) Write to Astrove Plumbing and Heating Corp., with copies to the employees
therein named, as follows:
We withdraw our objection to your employing Jose Rodriguez, Jerry Gonzalez,
Isaac Borges, and Bernard Allman. We will not prevent or attempt to prevent
or induce or encourage our members, directly or indirectly, to engage in a walk-
out, stoppage, or other concerted cessation of work in order to prevent you from
employing or retaining the above-named persons on the basis of your inde-
pendent judgment concering their suitability for employment with you, with-
out regard to membership or nonmembership in our Union.
(b) Make whole Jose Rodriguez, Jerry Gonzalez, Isaac Borges, and Bernard
,Allman, in the manner indicated in the remedy section of this Decision, for all
losses in pay sustained by reason of their being deprived of employment by Astrove
Plumbing and Heating Corp., from April 30, 1964, to 5 days after sending the above
notification, or to the time Astrove employs such persons, whichever is earlier.
(c) Post in conspicuous places in Respondent's office and meeting halls copies of
the attached notice marked "Appendix." 20 Copies to be furnished by the Regional
21 Should the Board adopt this Recommended Order, then , in place of "the Recom-
mended Order of a Trial Examiner," the words used shall be "a Decision and Order,"
and in the event of court enforcement the words used shall be "a Decree of the United
States Court of Appeals, Enforcing an Order."
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director for Region 2 , after being duly signed by the official representative of
Respondent , shall be posted by it immediately upon receipt thereof, . and maintained
by it for 60 consecutive days thereafter in conspicuous places, including all places
where notices to members are customarily posted. Reasonable steps shall be taken
by Respondent to insure that the notices are not altered , defaced, or covered by any
other material.
(d) Mail or deliver to the Regional Director for Region 2 for posting ( if willing)
by Astrove Plumbing and Heating Corp., The Association of Contracting Plumbers
of the City of New York, Inc., and all other members thereof over whom the Board
would take jurisdiction , at their respective headquarters , in the same manner and
for the same period as indicated in the preceding paragraph.
(e) Notify said Regional Director , in writing , within 20 days from the date of
this Recommended Order, what steps Respondent has taken to comply therewith.21
"If the Board should adopt this Recommended Order, said notification shall be given
within 10 days from the date of the Board ' s Order, in the event of court enforcement,
it will be 10 days from decree
APPENDIX
To ASTROVE PLUMBING AND HEATNG CORP. AND THE ASSOCIATION OF CONTRACTING
PLUMBERS , OF THE CITY OF NEW YORK , INC., THEIR EMPLOYEES , AND TO MEM-
BERS OF OUR UNION
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify you that:
After a hearing duly held, it was found that this Union, by the strike and walkout
of its members at Bronx Market Terminal Project in 1964 , caused the four persons
named below to be denied employment because they were not members of our
Union . Also, article 2(a) of our contract with the Plumbing Association was deter-
mined to be invalid under the National Labor Relations Act because it discrim-
inates against nonmembers in respect to being hired . It has been recommended that
we refrain from such conduct in the future , not give effect to article 2(a), and take
certain remedial measures in respect to the conduct engaged in. Accordingly, we
hereby notify you as follows:
WE WILL NOT cause or attempt to cause any employee or applicant to be
denied or deprived of employment or otherwise discriminated against because
he is not a member of our Union.
WE WILL NOT cause or attempt to cause any provision in our contract with
the Plumbing Association to be applied or interpreted so as to make member-
ship a condition of employment or nonmembership a disqualification from
employment , or so as to grant members a discriminatory preference over non-
members.
WE WILL NOT engage in , or induce or encourage any of our members directly
or indirectly to engage in, a strike , stoppage , or concerted refusal to work, having
as an object to prevent or deny employment to any person because of nonmem-
bership in our Union , or in order to cause members to be given a discriminatory
preference over nonmembers.
WE WILL NOT give effect to article 2(a) of our contract with the Plumbing
Association which reads:
The Association agrees that its members will give priority in employ-
ment opportunity to qualified and competent men based upon their length
of employment in the geographical area of the Union , as contrasted and
compared with men who have worked mainly in other geographical areas.
The previous hiring practices in all respects shall continue including prac-
tices as to qualifications and competency and furthermore , members of the
Union may be hired as in the past without regard to prior length of service.
WE WILL write Astrove Plumbing and Heating Corp ., with copies to the
employees there named, that we withdraw our objection to the employment of
Jose Rodriguez , Jerry Gonzalez , Isaac Borges , and Bernard Allman, and will
not prevent or try to prevent or induce or encourage our members to engage in
a strike, walkout , or stoppage in order to prevent Astrove from employing or
retaining them or any of them on the basis of an independent judgment concern-
ing their suitability for employment , without regard to membership or non-
membership in our Union.
STEAMFITTERS , NO. 572 , UNITED ASSOCIATION , ETC. 1117
WE WILL make good to the above-named persons, with interest , all their pay
losses resulting from their having been deprived of employment with Astrove
Plumbing and Heating Corp.
All applicants are free to begin work, all employees are free to remain at work, and
all employers above named are free to hire or retain empoyees on the basis of their
judgment concerning suitability without regard to membership or nonmembership
in our Union , except only in the event that a contract is made requiring membership
in our Union as a condition of employment ; and in that event, as the law prescribes,
membership will not be required , in the construction industry earlier than after the
7th day and in all other industries after the 30th day, following the beginning of such
employment , or following the date of the contract , whichever is later; and no person
will be denied or deprived of employment where membership was not made available
on equal terms with other members or was denied or terminated for reasons other
than failure to tender the uniformly required periodic dues or initiation fees.
LOCAL UNION No. 2 OF THE UNITED ASSOCIATION OF
JOURNEYMEN AND APPRENTICES OF THE PLUMBING
AND PIPEFITTING INDUSTRY OF THE UNITED STATES
AND CANADA, 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.
Any employees or applicants for employment , employers or members or repre-
sentatives of the Union having a question concerning the above notice or what it
requires may ask in person or by mail or telephone of the Board's Regional Office,
Fifth Floor, Squibb Building , 745 Fifth Avenue, New York, New York, Telephone
No. 751-5500.
Steamfitters, Local 572, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL-CIO.' and Compudyne-Regan-
Acme, a Joint Venture, P.B.S., Inc. , Ernst Nager, M. B. Elec-
tronics, and O. G. Kelly & Co.2 Case No. 26-CD-3O. Jwne 2,
1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following a charge filed by CRA, alleging
that the Pipefitters has threatened, coerced, or restrained its subcon-
tractors and other persons engaged in commerce or in an industry
affecting commerce , with an object of forcing or requiring CRA to
assign the work of operating a mass-spectrometer machine to employ-
ees who are members of, or represented by, Pipefitters, rather than to
the employees of CRA who are not members of that labor organization.
A hearing was held before Hearing Officer Kay P. Fisher on March 17,
1965, at which all parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to adduce evidence bear-
i Hereinafter referred to as Pipefitters or the Union.
2 Compudyne-Regan-Acme, hereinafter referred to as CRA, is the general contractor
for the project involved herein. P.B.S., Inc. , Ernst Nager, M.B. Electronics , and O. G.
Kelly & Co ., are all subcontractors of CRA.
152 NLRB No. 115.