Nassau and Suffolk Contractors' Association, Inc., 174 (1957)

Docket Number: 02-CA-04208

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Nassau and Suffolk Contractors' Association, Inc., 174 (1957)

Nassau and Suffolk Contractors' Association, Inc., and its members listed in Appendix A and Peter Batalias and Local 138,.

International Union of Operating Engineers, AFL-CIO, Party to the Contract Local 138, International Union of Operating Engineers , AFL-CIO, and Peter Batalias and Nassau and Suffolk Contractors' Association, Inc., and its members listed in Appendix A, Party to the Contract Hendrickson Brothers, Inc. and Peter Batalias and Nassau and Suffolk Contractors' Association, Inc., and its members listed.

in Appendix A, Local 138, International Union of Operating Engineers, AFL-CIO, Parties to the Contract. Cases Nos..

2-CA-4208,2-CB-1438, and 2-CA-4f09. June 18,1957 DECISION AND ORDER

On September 18, 1956, Trial Examiner David London issued his.

Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report and supporting briefs. The Board heard oral argument at Washington, D. C., on January 24, 1957..

Representatives of the General Counsel, the Charging Party, the Respondent Association, the Respondent Hendrickson, and the Respondent Union appeared and participated in the oral argument.

Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Murdock and Bean].

The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Intermediate Report, the exceptions and briefs, the oral argument, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, except as modified hereinafter.2

1. We agree with the Trial Examiner that the 1944 collectivebargaining agreement between the Association and the Union as renewed periodically thereafter contains unlawful hiring provisions I The Trial Examiner erred in taking official notice of the criminal conviction of John De Boning, Sr. We have not considered the fact of his conviction in reaching our decision. Accordingly, we do not deem the Trial Examiner's error prejudicial.

2 The Trial Examiner found that Frank Fatscher was an official of Ted Fatscher, Inc.

The record shows, and we find, that he was only an employee of that Respondent.

118 NLRB No. 19.

NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC. 175, and that the so-called savings clause is not sufficient to purge those provisions of their illegal effect.3

The Respondents contend that the unlawful clauses have not been enforced and consequently there has been no violation of the Act.

Where contracting parties agree not to enforce and in fact do not enforce an unlawful union-security clause, the Board has held that there is a violation of Section 8 (a) (1) and 8 (b) (1) (A), but not of Section 8 (a) (3) and 8 (b) (2). If the contracting parties go further and inform employees of their intention, no violation at all will be found.' There is no evidence in this case either of an agreement by the Respondents not to enforce the hiring provisions of their contract or of notification to employees to that effect. On the contrary, the evidence is overwhelming that the unlawful hiring clauses were in fact enforced according to their terms.5 The fact that a few individuals.

may have been hired without clearance from the Union does not destroy the cumulative effect of testimony by numerous master mechanics and company officials establishing that hiring was done in conformity with the provisions of the 1944 agreements Accordingly,, we find, as did the Trial Examiner, that by continuing in effect the closed-shop provisions of the 1944 collective-bargaining agreement,

Respondent Association and Respondent Hendrickson violated Section 8 (a) (1), (2), and (3), and Respondent Union violated Section 8 (b).

(1) (A) and (2) of the Act.' 2. We agree with the Trial Examiner that Respondents Hendrickson and Davis Construction Corp., but not Ted Fatscher and William H. Greene, have unlawfully interfered with the administration of the affairs of Respondent Union by the voting of certain executives and supervisors at union meetings.

There are insinuations in this case of corruption in and maladministration of the affairs of the Union and collusion between union officials and Employers intended to give trade advantages to some Employers as against others. Because of the public importance of such issues, with which the Board Members as individuals are as much concerned as any other citizens, something must be said of the Board's power as an agency of the United States Governm...

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