Capital District Sheet Metal Roofing and Air Conditioning Contractors" Association, Inc.

702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Capital District Sheet Metal , Roofing and Air-Condi- tioning Contractors' Association, Inc., including B. Sheber & Sons, Inc., Varden Bros. Roofing Co., Inc., McCreary Metals, Inc., Venditti Bros., Inc., Levi Case Co., Inc., Skyway Roofing Co., Inc., Kaiser Boswell Co., Inc., Monahan & Loughlin Inc., James Ackroyd & Sons, Inc., Charles R. Joyce & Son, Inc., Joyce & Kramer, Inc., G. E. Van Vorst Co., Inc., and E. W. Tompkins Co., Inc. and Local Union No. 83 of Sheet Metal Work- ers' International Association Nicholson Co., Inc. and Hudson Valley District Coun- cil of Carpenters Eastern New York Construction Employers, Inc. and Asbestos Contractors Association and its Members including Johns-Manville Sales Corp., Robert A Keasbey Co., Armstrong Contracting & Supply Corp., and Tri-City Insulation Co., Inc., and Local No. 40, International Association of Heat and Frost Insulators and Asbestos Workers Basic Construction Co. and International Union of Operating Engineers Local 545-D Nicholson Co., Inc., and International Hod Carriers, Building and Common Laborers Local Union 17 Kilby Bros., Inc. and International Hod Carriers, Building and Common Laborers Local Union 17 Eastern New York Construction Employers, Inc. and its Members including Basic Construction Co., Cooley Contracting Co., Inc. and Glenmont Equipment Co., Inc. and Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Precision Metal Works, Inc. and Local Union No. 83 of Sheet Metal Workers' International Association. 3-CA-2632, 3-CA-2647, 3-CA-2656, 3-CA-2676, 3-CA-2680, 3-CA-2681, 3-CA- 2778-2, 3-CA-2783-1, 3-CA-2783-2, 3-CA- 2783-3, 3-CA-2783-4, and 3-CA-2783-5 September 23, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On August 22, 1969, Trial Examiner Sidney D. Goldberg issued his Decision in the above-entitled proceeding, finding that Respondents had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respondents filed a brief 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 this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations2 of the Trial Examiner. ORDER Trojan Hardware Co., Inc. and Local Union No. 83 of Sheet Metal Worker's International Association Latham Sheet Metal Corp. and Local Union No. 83 of Sheet Metal Workers' International Association John P. Hand Heating & Air Conditioning Corp. and Local Union No. 83 of Sheet Metal Workers' International Association McCreary Manufacturing Co., Inc. and Local Union No. 83 of Sheet Metal Workers' International Association Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. ' In accord with the General Counsel's unopposed request, we disavow the Trial Examiner's statement that Mr Henry Landau appeared for the Charging Parties ' In our adoption of the Trial Examiner 's findings , conclusions, and recommendations we are, of course , deciding only those issues raised by the facts , pleadings, and exceptions in this case We do not intend by adoption of these findings and conclusions to pass upon the broader issue of the legality of a lockout over issues not the subject of bargaining or deadlock in negotiations to which the locking-out employer is, at the time, a party Notwithstanding a contrary suggestion in the Trial Examiner's Decision (fn 70), those issues are not before us for review 185 NLRB No 90 CAPITAL DISTRICT SHEET METAL 703 TRIAL EXAMINER'S DECISION SIDNEY D GOLDBERG, Trial Examiner The central question in this case is whether a large group of building construction employers, bargaining in several units with appropriate craft unions, acted unlawfully when they locked out their employees in all the units, in support of a bargaining position at issue in some , but not all , of those units The amended and consolidated complaint herein' alleges that Eastern New York Construction Employers, Inc (herein called Eastern New York), the principal association of building construction employers in the Albany, New York, area, two of its constituent organizations,' and 27 employer-members of these associations," violated Section 8(a)(5), (3), and (1) of the National Labor Relations Act, as amended (herein called the Act), by locking out employees during the course of bargaining for new contracts to begin May 1, 1965 4 Respondents answered, denying the commission of such violations, and the issues so raised came on for trial before me in Albany, New York, on 38 days between February 12 and August 7, 1968. All parties were represented, afforded an opportunity to adduce evidence, cross-examine witnesses, and argue upon the facts and the law. Briefs filed by the General Counsel and by counsel for Respondents have been considered. For the reasons hereinafter set forth in detail, I find that, although Respondents acted in concert and locked out employee-members of the charging unions, they did so solely in support of their bargaining position during negotiations and that, under relevant Board and court decisions, their conduct did not violate the Act as alleged in the complaint Based upon the entire record herein,5 and the demeanor of the witnesses while testifying, I make the following FINDINGS OF FACT I. THE EMPLOYERS INVOLVED on behalf of their own members-as well as on behalf of Eastern New York's members-are claimed by the General Counsel to be essential to an understanding of the actions of Respondents, Accordingly, much of the evidence in the record concerns the activities of these other employers and their representatives , with whom, it is argued, the Respondents acted in concert in carrying on the activities for which it is sought to make them responsible in this case. These other constituent associations of Eastern New York, concerning whose activities proof was taken herein, are Mechanical Contractors Association of the Capital District (herein called Mechanical Association),' General Contrac- tors Association of Eastern New York (herein called General Contractors Association),' and Capital District Tile, Marble Terrazzo and Slate Contractors Association (herein called Terrazzo Association) 10 The complaint alleges that Eastern New York, its constitu- ent organizations , Sheet Metal Association, Asbestos Association, Mechanical Contractors Association, and Terrazzo Association, and the 27 named contractors, are all employers engaged in commerce within the meaning of the Act. The answer admits the allegation as to 26 of the 27 individual employers" but denies it as to Latham Sheet Metal Corp (herein called Latham) and as to the constituent associations 12 With respect to Latham, the record shows clearly that , during the fiscal years ending September 30, 1964, and September 30, 1965, it received revenues of more than $50,000 from persons engaged in interstate commerce13 and that it is, therefore , engaged in commerce within the meaning of the Act 14 With respect to Eastern New York and its constituent associations, the answer admits that they have negotiated collective- bargaining agreements on behalf of their members and, as stated above, that their members are engaged in commerce. Since Section 2(2) of the Act defines the term "employer" to include "any person acting as an agent of an employer," the denial that they are employers is frivolous and raises no issue necessary to decide herein While the named respondents remaining in this case are the 27 individual employers and the three associations to which they belong viz, Eastern New York, Sheet Metal Association' and Asbestos Association,' there are several other constituent associations of Eastern New York, repre- senting employers in other bargaining units, whose activities 1 Issued December 21, 1967, on charges and amended charges filed between May 3 and November 1, 1965 1 Capital District Sheet Metal , Roofing and Air Conditioning Contrac- tors' Association , inc (herein called Sheet Metal Association), and Asbes- tos Contractors Association of Albany and Vicinity (herein called Asbestos Association) 1 At the commencement of the trial there were 29 individual employer- respondents, during its course, 3 were dropped and one was added ' All dates herein , not otherwise designated , are 1965 By order dated January 27 , 1969, corrections were made to the transcript of testimony Consisting of employers engaged in sheet metal work, principally in connection with roofing and with heating or air-conditio ing duct work Consisting of employers engaged in heat-insulation work on piping, machinery, and buildings 11. THE LABOR ORGANIZATIONS Although the complaint herein shows that it was issued on the basis of charges by locals of the Sheet Metal Workers, Asbestos Workers, Laborers, Carpenters, Operating Engi- neers, and Teamsters," this case involves additional labor ' Consisting of employers engaged in plumbing work and in the installa- tion of heating and air-conditioning machinery ' Consisting of employers engaged both as general contractors and in masonry , concrete, and bricklaying work ° Consisting of employers engaged in marble, tile, and terrazzo work One of these individual employers is Glenmont Equipment Co, Inc , added during the trial and alleged to be integrated with Respondent Cooley Contracting Co, inc Glenmont's answer admitted commerce and its status is discussed below " Only Sheet Metal Association and Asbestos Association are named as respondents 11 During the year ending September 30, 1964 , it received over $50,000 from General Electric Company and Ford Motor Company alone " SiemonsMailing Servtce, 122 NLRB 81 " Local Union No 83 of Sheet Metal Workers ' International Association (herein called Sheet Metal Workers , Local 83), Hudson Valley District (cont'd) 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organizations, dust as it involves employers not named as respondents These additional labor organizations include locals of Iron Workers, Plumbers, Laborers, Bricklayers, and Terrazzo Workers 16 It is admitted herein that all of the foregoing locals are labor organizations III THE UNFAIR LABOR PRACTICES A Background Although the trial of this case was held on 38 days, resulting in a transcript of 5,078 pages and 121 exhibits totaling 839 pages, the facts herein are not seriously in dispute." 1 The employer associations Eastern New York is the principal employer association for the building construction industry in the region termed "east central New York"; i.e., the city of Albany and a radius of about 50 miles which includes the cities of Troy and Schenectady. Until the early 1950's it had been known as the Albany Builders Exchange and the present arrangement of employer associations in the area rests in historical development rather than any logical organiza- Council of Carpenters (herein called Hudson Valley Carpenters), Local No 40, international Association of Heat and Frost Insulators and Asbes- tos Workers (herein called Asbestos Workers, Local 40), International Union of Operating Engineers Local 545-D (herein called Operating Engineers Local 545-D), International Hod Carriers, Building and Com- mon Laborers Local Union 17 (herein called Laborers Local 17), Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called Teamsters Local 294) " Local Union No 12, Iron Workers District Council of Western New York and Vicinity, AFL-CIO (herein called Iron Workers, Local 12), United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 61 (herein called Plumbers, Local 61) and Local 7 (herein called Plumbers, Local 7), international Hod Carriers, Building and Common Laborers Union of America, AFL-CIO, Local No 452 (herein called Laborers, Local 452), Bricklayers, Masons, Plasterers, Marble, Tile & Terrazzo Workers, Local 6, Local 10, and Local 16 (herein called Bricklayers Locals 6, 10, and 16, respectively), Tile, Marble and Terrazzo Division of Bricklayers Locals 6,-10, and 16 (herein called Tile and Terrazzo Workers Union), and Local 59 of the International Association of Marble, Stone and Slate Polishers, Rubbers and Sawyers, Tile and Marble Setters Helpers and Marble, Mossaic and Terrazzo Workers Helpers (herein called Terrazzo Helpers Union) i' Respondents' brief states "The facts, as proven in the record are generally not in dispute " Furthermore, although this statement continues in "There are a few sharp issues of fact which will be discussed later m this brief," the only issues of fact referred to in the brief are (i) whether the masons were on strike on May 3, and (ii) whether some employees (not masons) were sent home because they could not perform their work by reason of the failure of the masons to do the requisite preliminary work These issues, as will be seen , need not be determined Finally, although both the General Counsel and counsel for Respondents undertook, at my request, to rile reply briefs to narrow and clarify any issues of fact in the record-and Respondents ' brief, in referring to this arrangement , states "Respondent is at a loss , as to what facts are being relied on by the General Counsel to prove its case "-they both notified me that no reply briefs would be filed From this I infer that Respondent has no quarrel with the General Counsel's presentation of the facts Accordingly , in setting forth the progress of negotiations in the several groups that were bargaining, I shall avoid, as far as possible, resolving the differences, if any, between the accounts given by the employer and the union negotiators but shall confine myself to an outline necessary to show the situation at the times critical herein tional structure. Some of the traditional employer bargaining groups have kept their identity for contractual purposes, as the Sheet Metal Association, Asbestos Association, and Mechanical Contractors Association Others have entered into their collective-bargaining contracts through Eastern New York. While the actual bargaining is conducted within the traditional craft categories with the appropriate craft unions, there has been employer exchange of information through Eastern New York, just as the craft unions in the area coordinate their policies through their Central' and other labor councils. The close coordination among the employers through Eastern New York, for collective-bargaining purposes, is reflected in the constitution and bylaws of that organization This document provides a president, a vice president, and a treasurer elected by the membership, but for the appoint- ment of the secretary and managing director (who may be the same person) by the Board of Directors, which is given general management powers over the organization The Board of Directors, in turn, consists of the officers of the association and of individual members chosen on the basis of their representation of 13 specified "trade groups," which are similar to the general contractors and the several separate crafts customarily involved in building construction In addition to this organizational pattern, the minutes of the January 19, 1965, meeting of the Board of Directors of Eastern New York reflects the creation of a "general labor committee on which all negotiating committees will be represented, whether or not they are negotiating this year " The record of the meeting states that the purpose of this committee "is to establish proper coordination during negotiations and also to arrive at certain guidelines for the various committees." From this organizational structure, and from the activities of the several craft groups of employers curing the negotia- tions in 1965,1e it clearly appears that, whether the Sheet Metal Association, the Asbestos Association, and the other associations were or were not technically members of Eastern New York, directly or through the membership of their members, the employers and associations involved in the negotiations of 1965 did in fact act in concert, and I so find. Accordingly, the General Counsel was justified in adducing evidence concerning their relevant activities, regardless of whether they were named as respondents herein 2 The status of the collective-bargaining contracts In the spring of 1965, there was, as noted, an assortment of contractual arrangements for collective bargaining in Eastern New York's area- some of the contracts having been executed by Eastern New York on behalf of its mem- bers, some having been executed by the constituent craft associations, and some having been executed by individual employers The contracts covering a large majority of the workmen in the area were scheduled to expire April 30, 18 Notably the creation, lust before the lockout, of the Steering Commit- tee on which all crafts were represented CAPITAL DISTRICT SHEET METAL 1965 Because of the number and variety of the contractual arrangements, it will facilitate comprehension and conserve time and space to set forth, in tabular form, the parties to and the expiration dates of the relevant contracts This table, marked "Appendix A," is deemed inserted at this point It is to be noted that several of these contracts continued in effect well beyond April 30, including the contract between Eastern New York and Teamsters Local 294, the contracts between Eastern New York and the Terrazzo Workers and the Terrazzo Helpers, and several contracts involving individual respondents herein During the early months of 1965, appropriate letters were exchanged to terminate most of the expiring contracts and, on March 9, Eastern New York, on behalf of itself and its constituent associations, including Sheet Metal Asso- ciation, Asbestos Association, and Mechanical Contractors Association, gave notice of such termination, pursuant to Section 8(d)(3) of the Act, to the Federal and State mediation services i' B. Negotiations 1. Preliminary The shorter workday It is quite clear that the major contributing cause-if not, indeed, the only basic cause-of the work stoppage involved herein was the effort, led by the masons' union, to obtain a shorter working day. The principal witnesses concerning the masons' negotiations, Sereno Boccar, the Albany local's business agent and chariman of the negotiat- ing committee for all the locals in the area, and John McManus, chairman of Eastern New York's negotiating committee, both testified that this effort had been visible for the past 10 years. Boccar ascribed it to a combination of causes a change in building technique involving the use of larger, heavier, building blocks, coupled with the advancing age of the average working bricklayer McManus contended that it was a bargaining ploy designed to raise actual wages since an eighth hour of bricklaying work in each day, he insisted, would still be required to maintain satisfactory progress on the construction jobs-but it would be an eighth hour paid for at the double wage rate customary for overtime in the Albany area. Whether Boccar or McManus more accurately described the basis for the masons' demand, there was no contradiction of Boccar's testimony that the rank-and-file masons-at least those in the Albany local-had formally instructed their negotiating representatives to present and adhere to this demand in the 1965 contract negotiations Moreover, the idea was undoubtedly attractive to the workmen in other crafts, since most of the union negotiators included that demand in their original proposals On the part of the employers, there was no doubt that the movement for a shorter workday occupied a prominent place in their concern about the upcoming negotiations. Both McManus and Boccar testified, as stated, that there had been discussion on the subject for almost 10 years " The notice listed, erroneously, the contract between Eastern New York and Teamsters Local 294, which was not about to terminate 705 in the masons' negotiations and Wilhelmus van Eekeren, the secretary and managing director of Eastern New York, testified that it was also one of the demands leading to a strike by the lathers' unions in 1963 In February 1965, a group of business agents representing several building trade unions requested and had a meeting with the president, two past presidents, the vice president, and the managing director of Eastern New York The union representatives inquired whether the officials of East- ern New York would discuss a shorter workweek in the negotiations. The spokesman for the employers said that they would discuss any subject, but he expressed their strong opposition to any shortening of the workweek. Shortly thereafter, posters expressing support for a 7-hour day began appearing at various construction sites Late in February, the General Labor Committee of East- ern New York, consisting of the chairmen of the several negotiating committees-whether the collective-bargaining contracts which they negotiated were in the name of Eastern New York or one of its constituent associations and whether or not they were terminating at the end of April-met and recommended that the Board of Directors of Eastern New York make known its opposition to any shortening of the workweek. It also recommended that the Board of Directors adopt a policy whereby all consturction work would be shut down if any of the crafts should fail to sign a new contract at the expiration of the old one The Board of Directors, at a meeting a day or so thereafter, adopted this recommendation of the General Labor Commit- tee but attached a grace period of 2 weeks before invoking a general shutdown. This meeting was, in turn, followed by a general membership meeting on March 2 at which overwhelming opposition to any shortening of the workweek was expressed and a resolution was adopted granting the Board of Directors authority to call for a shutdown "in case the economical operation of the jobs would be jeopard- ized by any or all unions, after the expiration date of the contracts . " and if the Board of Directors "felt that an impasse had been reached in negotiations." After this meeting, Managing Director van Eekeren dis- cussed the subject of the shorter workweek privately with several union representatives and invited about 30 of them to a meeting on March 30 with the officials of Eastern New York at the Thruway Motel in Albany Van Eekeren spoke to the group, stating that it had begun to appear that some of the unions were going to make the shortening of the workday an essential element in any new contract, that the membership of Eastern New York had expressed its strong opposition and that he thought "it would be a great shame" if construction workers were to lose money over this controversy20 when there was "so much work" available in the area He then proposed that all expiring contracts be extended for 2 years at an increase in wage '° Eastern New York periodically issues a bulletin to its membership to keep them informed on matters of interest to them The one issued under the date March 31, 1965, featured, with the title "A Momentous Decision-Lockouts Declared Legal," a brief summary of the Decision of the Supreme Court in American Ship Building Co v NLRB,380 U S 300 (issued March 29, 1965) 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rates" but -"ithout any other changes involving money except for the establishment of an "industry fund" for use by the employers. He also proposed that the parties to the extended contracts meet in August, when there would be no pressure by "deadlines," and discuss a further extension of the contracts for a 5-year period during which, possibly, the workweek might be gradually shortened. This proposal became known as the "Thruway Proposal."22 A few days later the unions, in a telegram signed by the president of the Building and Construction Trades Council, stated that they would "negotiate all proposals on an individual basis." All subsequent negotiations were conducted, accordingly through the separate negotiating committees but, as noted, the employers maintained liaison among the several committees through the General Labor Committee of Eastern New York and the unions did the same through the Building and Construction Trades Coun- cil. 2.7he masons The established custom in the Albany area is for general contractors to perform their own masonry, bricklaying, and concrete work. The General Contractors Association of Eastern New York, therefore, rather than any association of masonry contractors, is the "trade group" represented on the Board of Directors, the general contractors designate the employers' negotiating committee for this work, and the single contract with the several masons' unions in the area is signed in the name of Eastern New York. The chairman of the employers' bargaining committee, as stated, was John McManus, a member of a firm of general contractors, and he had five other employers on his commit- tee Sereno Boccar, chairman of the union committee, had other members of the Albany local, as well as delegations from the other locals, on his committee so that the union negotiating team consisted of 15 or more men The first meeting between union and employer representa- tives was on April 7 when Boccar, alone, met with five or six members of the employers' committee The purpose of the meeting was simply to exchange proposals but, before that could be done, according to Boccar,23 he was asked by McManus whether the union proposals contained a shorter workday; that, when Boccar said that they did, " Van Eekeren testified that , although he did not mention a figure, everyone understood that the "going" rate of increase, 20 cents per hour each year, was intended " The gradual shortening of the workweek to 35 hours over a 5- year period was known as the "Koreman Plan," for the business agent of the Albany electricians' union who had proposed it The preliminary 2-year period before commencement of reduction in hours was added by van Eekeren, who claimed that maintenance of the status quo was necessary to permit the orderly completion of construction already bid or in progress " Comparison of the testimony of Boccar, McManus, and van Eekeren concerning the negotiations shows some divergencies in details, rising in some instances to conflicts concerning whether particular statements were made at a particular meeting or some other, whether certain remarks were made by one or another representative of either side, and, in fact, whether certain statements were made at all In many instances, resolution of these divergencies is unnecessary and the account of the negotiations is set forth in general terms as substantially uncontradicted Where necessary , of course, important conflicts are resolved McManus exclaimed: "That's it-we can't talk further because they haven't authorized us to" and refused to deliver the employers' proposals McManus' testimony was at variance with Boccar's• he indicated that several union representatives were present at this meeting; that he asked them whether they would discuss the Thruway Proposal; that, when they said they weren't familiar with it, he explained it, and that he suggested they meet in a week to discuss that proposal or to exchange specific proposals McManus conceded, however, that both parties had written proposals in their possession which they did not exchange and he was somewhat uncertain whether some of the things he described occurred at the first or second meeting Based upon these factors, and upon the fact that Boccar's testimony shows that he was familiar with the Thruway Proposal 'because he was present at the meeting at the Thruway Motel and McManus' 'testimony shows that he was not, I accept Boccar's version of this meeting. The committees, with most members present on both sides, met again on April 14, and exchanged their written proposals.24 After Boccar read out the unions' proposals, according to McManus, they spent 2 to 3 hours discussing the problems involved in the shorter workday; Boccar explaining why it was necessary and that the union represent- atives were under orders from the membership to obtain it and, they agree, McManus stating at great length the reasons for the employers' insistence on a continuation of the 8-hour day for at least 2 years They both testified that McManus said he would not carry their discussions beyond the first item of the proposals in dispute-the length of the workday-and that he would not, as was their past custom, pass on to negotiation of other elements of the contract and return to the difficult problems later In fact, McManus testified, he suggested a 9-hour day, but the unions rejected it Boccar testified that McManus said that this problem of hours of work was his special interest and that, for this reason, he had asked for the appointment as chairman of the employers' negotiating committee Boccar further testified that McManus stated that, unless all crafts agreed on contract terms before May 1, there would be no work for anyone after that date. Although McManus denied having threatened a shutdown, in view of his admis- sion that he did say that the employers had a right to shut down and would probably follow the recommendations of Eastern New York, which was already known to advocate a general shutdown, I accept Boccar's testimony on this point. There was another meeting on April 19 but McManus confirmed Boccar's testimony that, after he had restated the unions' reasons for reducing the length of the workday, the employers' representatives refused to discuss any other subject. 34 The proposals, naturally , contained conflicting provisions The unions' would reduce the hours of work from 8 to 7, while the employers' would maintain the 8-hour day, the unions' would retain the double rate provision for overtime, while the employers' would reduce it to time and a half, the unions' would continue to provide for reporting pay and would double the rate of travel expense, while the employers' would abolish both, the unions requested a raise in the hourly rate from the $470 in the expiring contract to $545 the first year and $5 75 the second year of the new contract, but the employers offered no raise at all The employers also proposed the industry fund CAPITAL DISTRICT SHEET METAL The meeting on Monday, April 26, started at 10:45 a m with proposals on both sides for different package deals but the unions' proposal continued to provide for a shortening of the workday-now modified, according to Boccar, by the addition of a provision for maintenance of the 8-hour day for 6 months-and the employers' proposal continued to provide for the maintenance of the 8-hour day for 2 years. McManus did concede, Boccar testified, that, if and when the contracts of a majority of the other trades provided for work less than 8 hours per day, the employers would "discuss" it but McManus predicted that the situation would not arise for 5 or 10 years. This meeting continued until 3.30 in the afternoon, the employers asking the unions to request the Thruway Proposal and the union representatives repeating that they were bound by the instructions from their membership to provide for a shortening of the workday Both McManus and van Eekeren testified that they told the union representatives that, if the demand for the shorter workday were dropped, both negotiations and employment could be continued for 30 days, and that they would agree that the terms of any contract subsequently reached would be retroactive to May I In view of this testimony, I accept Boccar's statement that both McManus and van Eekeren reiterated the employers' intention to lock out the employees upon the expiration of the contracts. When this meeting terminated, McManus and van Eeker- en went to Eastern New York's offices, where a meeting of the General Labor Committee was in session, and the union representatives went to the Little Bavarian Tavern for dinner. McManus testified that when he entered the meeting of the General Labor Committee, he gave his report on the status of negotiations with the masons; that he stated that the unions were holding to their demand for a shorten- ing of the workday, and that he felt they were ready to strike for it. The chairman of the employers' committee negotiating with the sheet metal workers' union , Francis G. Windelspecht, and the chairman of the committee negoti- ating with the lathers' union, John Reihmer, both reported that those unions were also holding firm on their demands for a 7-hour day. There was some discussion, McManus testified, about the possibility of continuing to operate beyond the termination date of the contracts but Frank Zeronda, the president of Eastern New York, presiding over the meeting, voiced the difficulties of continuing con- struction jobs without signed agreements and without assur- ance that the men would report for work. At this point, according to McManus, he addressed the meeting, pointing out that the membership of Eastern New York had voted to maintain the 8-hour day and to require that new agree- ments be signed before the old ones expired. McManus then asked President Zeronda for a written statement of the organization's policy so that he could use it to impress its firmness on the representatives of the masons' unions. Zeronda and van Eekeren then prepared a statement and had it typed on a stencil. The statement reads as follows: TO ALL NEGOTIATING COMMITTEES This is to inform you that the general membership of Eastern New York Construction Employers has 707 unanimously voted to oppose any shorter workday or work week. The undersigned Chairmen have declared themselves in full accord and will absolutely refuse to sign any agreement which shortens either the workday or work week. SIGNED BY CHAIRMEN OF THE EMPLOYERS' COMMITTEES and spaces were provided for the signatures of the chairmen of each of the negotiating committees, regardless of whether they were in negotiations. The listed chairmen, almost all of whom were present, then signed the stencil; it was run off on the office mimeograph machine, and copies of the signed statement were distributed to the several chairmen McManus took his copy and declared his intention of showing it to Boccar and the other members of the masons unions' committee Van Eekeren told McManus that these men could be found at the Little Bavarian Tavern and McManus went there Finding Boccar and three of his colleagues still there, McManus showed them the statement, explaining the official status of the others who had signed it zs The union representatives, according to McManus, looked at the list of signers and said that, with a few exceptions like Lanzetta, chairman of the tilesetting contractors' com- mittee who also dealt with the masons' union, they didn't know the men and were not interested in the other crafts. They also said that they were negotiating for an agreement that would satisfy their membership and that they were under orders to shorten the workday to 7 hours. McManus then asked James P. Murphy, another committee member from the Albany masons' union, whether the union would strike for a 7-hour day or if no agreement were reached by April 30 and Murphy refused to answer. He also testified that one of the union committeemen asked whether the employers intended to lock out the masons and that he replied that his committee's object was to obtain an agree- ment but their actions as employers were dependent upon the recommendations of Eastern New York. McManus also testified to his repetition of the statement that, if the unions would drop their effort to shorten the workday, negotiations and construction work could continue past the termination date of the contract. Murphy confirmed McManus' testimony, but added that McManus unequivo- cally stated that, unless all trades signed contracts, all the trades would be locked out. Another meeting was held April 29 with practically all members of both committees present McManus testified that he asked the union committeemen whether they had discussed the employers' opposition to a 7-hour day with their members, that they told him they had done so informal- ly but that their members' position remained unchanged He also testified that the unions then proposed a gradual reduction in the workday: an 8-hour day for 6 months; a 7-1/2-hour day for 6 months and a 7-hour day thereafter; and that the employers refused At this point McManus " Boccar testified that this incident followed the negotiation meeting of April 19 In view, however, of the testimony of McManus, van Eekeren, and Murphy, it appears that Boccar was mistaken and I find that this occurred on April 26 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD repeated, according to Boccar, that the employers had a right to lock out the men if all trades had not signed by May 1 The employers then suggested that the unions propose a contract providing for an 8-hour day for 2 years, a wage increase of 10 cents per hour each year, and establishment of an industry fund, pointing out that this was not very different from the Thruway Proposal, particularly in its inclusion of a standstill on the 8-hour day for 2 years, but the unions rejected it. Either McManus or van Eekeren repeated the employers' offer to keep the construction jobs going and continue negotiations for 30 days if the unions would drop their insistence on a 7- hour day McManus testified that, when he asked Murphy what the masons would do if no agreement was reached, Murphy said the men would not work without a contract 26 Boccar testified that "it was more or less the same story all over again" and that, early in the afternoon, McManus gathered up his papers and said: "That's it," whereupon Boccar told the employers' committee that they could reach him over the weekend if they wished to meet further but that McManus told him "not to bother," that the jobs would be shut down. The employer and union committees did not meet again prior to the lockout." 3 Plumbers The plumbing and heating contractors of Albany and Troy had separate contractual arrangements with Plumbers Local 7 of Albany and Plumbers Local 61 of Troy, respec- tively. In Albany they bargained through the Mechanical Contractors Association but in Troy they bargained as an informal group of contractors and each of them signed individual copies of the contract agreed upon. a. Albany The negotiations between the Mechanical Contractors Association and Plumbers Local 7 began2A with a brief " Murphy testified, in response to leading (but not improper) questions, that he never said that the union would go on strike or "bring the industry down" and Boccar also testified that the unions never threatened to strike I find, however, that these statements constitute a negative pregnant with respect to McManus' testimony , and I accept the statement of McManus on this point " William H Shaw, project manager of Basic Construction Co, general contractor at the State University job, testified that on April 29 Boccar came to see him and said negotiations with Eastern New York "were not progressing too well" and it looked like the contract was going to expire, that Boccar asked that Basic sign a separate contract with the masons' union but he refused to do so, whereupon Boccar said that, if there were no contract, there would be no men on the job after May 1 " The Mechanical Contractors Association had a part-time employee whose function was to act as recording secretary for the association in meetings with representatives of Local 7 The notes which he kept were received in evidence and were not contradicted by any other witness The testimony of Elbert W Tompkins, president of the contractors association and chairman of its negotiating committee , while fragmentary, was supplemented by his investigative affidavit (received as past recollec- tion recorded) and does not conflict, in any substantial degree, with that of Raymond Maguire , president of Local 7, and that of Bernard Statile, its secretary Some testimony on this subject was also given by van Eekeren Accordingly, the account of these negotiations is based upon a consolidation of the evidence given by all of the foregoing discussion following the completion of a grievance committee meeting on March 13. Tompkins asked the union representa- tives29 what they were "looking for in May." Although protesting that the meeting was not a negotiating meeting, the union representatives stated informally that they would be asking for a 7-hour day, a wage increase, and some additional holidays. The contractors immediately said- "Don't even talk about [it] because we're not going to go into seven hours." The representatives of both sides met again on March 23, when the contractors presented their written proposals for a new contract These proposals, as characterized by the union committeemen, would have reduced compensation and benefits in every area and would have provided an "industry fund" under the exclusive control of the contrac- tors The representatives discussed the contractors' proposals and, as the minutes show, the union members referred to their desire for a 7-hour day, suggesting several methods by which that result might be gradually reached, and their concern lest there be a lockout by the employers 10 During this meeting, Tompkins asked the union representatives whether the other unions would try to settle as a group and was told that the plumbers' International would not permit them to join in a group settlement. The union representatives rejected the contractors' proposals but it was agreed that the committees would meet again in a week and that the union would then present written propos- als. The committees met again at the end of March and the union submitted its proposals. As a preliminary matter, the union requested assurance that, if it signed a contract, its men would be permitted to work without interruption, but the contractors refused to give such assurance. The union asked that the workday be reduced to 7 hours; the contractors answered that it was "out of the question" and refused to discuss it Nevertheless most of this meeting, which lasted several hours, was taken up with statements by the union committeemen in justification of a shortening of the workday. The contractors also rejected each of the other union proposals: higher wages, increased traveling expenses, paid holidays, and extension of the cooling-off period at the end of the new contract from 15 to 30 days. The committees next met on April 20 and, as the minutes show, immediately launched into a discussion of whether the men would be permitted to work if the parties signed a contract. Tompkins first conceded that, in accordance with the 15-day cooling-off provision in the expiring con- tract, the employers would be required to wait that period of time before they could lock out the men. He followed his concession, however, by informing the union men that Eastern New York intended to picket the jobs and, when the union representatives said that a picket line by the 39 The grievance committee and the negotiating committee of the union have the same members 31 In addition to the strong opposition to a shorter workday expressed by the membership of Eastern New York at the meeting on March 2, with its implicit threat of a lockout, Reilly, president of Local 7, made reference at the negotiating meeting to the lockout that had occurred 4 years earlier and Tompkins' affidavit refers to a shutdown by his shop during those negotiations CAPITAL DISTRICT SHEET METAL 709 employers would have no status, Tompkins said that if Eastern New York were to "shut down the industry we close down " There was further discussion on the several items in dispute but the contractors were adamant in their refusal to shorten the workday On April 28 the committees again met, with van Eekeren present to explain the industry fund Most of the discussion was on the length of the workday and the problems of working if Eastern New York shut down the industry Van Eekeren noted that the sheet metal workers were insisting on a 7-hour day and stated that Eastern New York might picket any jobs that did not shut down Tomp- kins showed the union committeemen the joint statement of the employer negotiating committee chairmen, signed April 26, declaring their mutual agreement to refuse to shorten the workweek The contractors offered to settle on an 8-hour day with hourly increases of 15 cents per hour each year and the union countered by asking for 25-cent increases each year. Van Eekeren suggested that they split the difference and agree on 20-cent increases but the meeting adjourned with the suggestion that they meet again on May 1. It was May 3 when the committees met again and the union agreed to an 8-hour day They were discussing union membership approval for a 20-cent-an-hour settlement when McManus and Zeronda came into the meeting and told the committeemen Eastern New York had voted to shut down if all trades had not reached agreement. Accord- ingly, he said, at 11 a.m. Eastern New York had sent out a telegram instructing its members to close down their jobs at the end of that day The union committee nevertheless undertook to call the members into a meeting later that week to consider the 20-cent offer and the contractors stated that the men "could work where they could work", that is, where jobs were not shut down or picketed by Eastern New York. b. Troy On February 24, Harry Carleton, president of Trojan Hardware Company and the leading member of the informal group of mechanical contractors of Troy, wrote a letter to Plumbers Local 61, notifying it of the termination of the contract on April 30, and stating that "per mutual agreement" the first negotiating meeting would be held March 16. Also by mutual agreement with the union, Carleton sent copies of this letter to each of the Troy contractors with which the union had a contract " At the first meeting, the union presented its demands: a 40-hour week with no raise in wage rates from May 1 to December 31, a 37-1/2-hour week with a 29-cent wage rate increase from January 1, 1966, to August 31, 1966; and a 35-hour week with a 31-cent wage rate increase from September 1, 1966, to April 30, 1967. In addition, the union requested increases in welfare and pension pay- ments. At the trial, Carleton identified the union's proposals but did not testify any further concerning the course of negotiations Business Agent Donovan of the union, howev- " Successive letters of notification sent by Carleton show that subsequent meetings were held on March 30, April 20 and 27, and May 1. er, testified that, when the union presented its written proposals, the contractors took them without comment and left the meeting. At the next meeting the first matter proposed for discussion was the 7-hour day but Carleton said there would be "no discussion of the seven-hour day" so they moved on to a union request on a safety matter. After a discussion of about 15 to 20 minutes, the contractors refused the request and terminated the meeting. At each meeting, Donovan testified, the union representatives raised the question of the 7-hour day and each time the contractors refused to discuss it. The union requested an increase in the wage rate in place of a shortening of the workday but the contractors refused to offer any wage increase whatsoever At the last of these meetings, on May 1, both sides agreed that the union would not strike and that work would continue during further negotiations, with any agreement subsequently reached being made retroactive to May 1 On May 3, however, Carleton called Donovan at the union hall and informed him that he had received a telegram from Eastern New York and that all jobs would have to be closed down. 4 Sheet metal workers Testimony concerning the negotiations between Respond- ent Sheet Metal Association and Sheet Metal Workers Local 83 was given by John McCarthy, president and business manager of the Union at the time, and by Leonard Levine, the Association's president, Donald A. McCreary, its secretary, and Francis Windelspecht, its treasurer and chairman of its negotiating committee. Managing Director van Eekeren, of Eastern New York, who was the Associa- tion's labor consultant and who acted as its recording secretary, also testified concerning the negotiations. There are no serious conflicts in all of this testimony, or with the documentary proof submitted on this subject, and the following account of the negotiations is based upon a com- pendium thereof. Sometime in March the Union delivered its proposals, in the form of a complete contract, to the association president. The proposed contract provided for a working day of 7 hours and a 5-day workweek, continuation of double pay for overtime, clarification of travel pay, and a wage rate increase. The Association held a meeting to discuss these proposals, at which van Eekeren was present, and its members decided that they would not accept a shortening of the workday. A day or two after this meeting, van Eekeren visited McCarthy at the Union's office and they discussed the recent meeting of building trades business agents, which McCarthy had missed, at the Thruway Motel. Van Eekeren said that it was "a shame" that the business agents who were there did not accept his proposal and that, if the unions persisted in their demands for a shorter workweek, it could result in a lockout lasting up to 6 months When McCarthy protested that such a lockout would be illegal, van Eekeren merely answered that it had been done in other cases and could be done here. Negotiation meetings between the Association and the Union were held April 19, 28, and 30; minutes of the meetings, taken by van Eekeren and approved at subsequent 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meetings, were introduced into evidence, there is not sub- stantial dispute between the written minutes and the witness- es' accounts of the proceedings. At the first meeting, about a week after van Eekeren's conference with McCarthy, Windelspecht told the Union's representatives that the employers would negotiate only" on the basis of an 8-hour day and a 40-hour week but the union representatives said they were under instructions from their membership to adhere to the demand for a 35-hour week McCreary testified that the employers told the Union that no other demands of the Union could be discussed "until the 7-hour day was resolved"," Levine testified that a member of the employers' negotiating com- mittee told the Union that, if the Union would set aside its demand for a shorter workday, discussion could be had on other provisions of the proposed contract and that, if other trades obtained a shorter workday, the employ- ers "would negotiate" concerning it. Between the meetings of April 19 and 28, the Union received the Association's proposals for changes in the existing contract The employers made no offer of a wage increase, they proposed to reduce overtime pay from double to one and a half, to reduce travel pay, and to establish an industry fund under their exclusive control. The minutes of the April 28 meeting show that the union representatives rejected the association proposal and repeated that their membership insisted on a 7-hour day Windelspecht repeated the employers' determination to negotiate only on the basis of an 8-hour day and showed the union representatives the document, prepared by McMa- nus on April 26 and signed by the chairmen of all the employer negotiating committees, pledging adherence to the 8-hour day. According to McCarthy, when the employers were asked to talk about a shorter workweek, Windelspecht said that they would "talk" about it indefinitely but that they would not do any more than talk about it. The union representatives thereupon stated that there was noth- ing they could do to change the submitted proposal since it had been adopted by the union membership and they returned to their headquarters to discuss the matter among themselves. The meeting of April 30 was conducted by a State mediator. After both sides again affirmed their original positions on the length of the workweek, a union representa- tive asked the employers whether they had the "courage" to get off the 40-hour week-even to a 38-hour week. This precipitated a heated exchange and the union committee left the room. When they returned, Windelspecht said that an impasse had been reached and that there was no point in further discussion. The union representatives said they were willing to continue working and continue negotiating but Windelspecht stated that, in conformity with the provi- " Windelspecht, whose testimony consisted almost entirely of his investigatory affidavit raised a question about whether the word appearing therein in this connection was "only" I find that it was used in the affidavit and that he used it in stating the employers' position to the Union Moreover, the minutes of this meeting state that "the Employers are willing to further negotiate on the proposed contract only on an eight-hour day basis " " The only other discussion was for the purpose of clarifying the Union's proposals on travel pay and temporary heat lion in the contract that it "shall continue in force and effect until conferences relating thereto have been terminat- ed," he was declaring such conferences terminated. 5 Asbestos workers Although they were gone into in great detail in the record, there is no dispute on any important aspect of the negotiations between the Asbestos Contractors Associa- tion and the Asbestos Workers Union. There were only four insulating contractors in the Associa- tion; they were all represented on the negotiating committee, and Bernard Mullen, its president, was chairman of that committee The negotiating committee of the Union consist- ed of its then president, Charles W Hamilton, its business agent, Edward W. Rossworm, and two other members There were six meetingsJ4 between February 24 and the termination of the contract on April 30 In accordance with established custom, notes were taken at the meetings, initialed by the participants before adjournment, and formal minutes, prepared from the notes, were discussed and approved at the following meeting. At their first negotiating meeting, both the Association and the Union presented detailed, written proposals and these, as well as the minutes, are in evidence. Although Mullen testified at great length, and President Hamilton and Business Agent Rossworm of the Union also testified fully concerning the negotiations, all of the evidence, written and oral, raises no serious question concerning the major facts The following summa- ry, therefore, is based upon a distillation of the evidence described At the first meeting, as stated, both sides presented written proposals and each side answered questions concern- ing the meaning or impact of each item it proposed. The Union's proposals included lengthening the contract term from 1 to 2 years, a wage rate increase of 30 cents the first year and 25 cents the second, six paid holidays, an increase of $1.50 per day in the more remote zones of the Union's geographical jurisdiction, provision for a 6- hour day if one-fifth of its members should become unem- ployed, reduction of the workday to 7 hours if the electri- cians, masons, or carpenters should shorten their workday, and additional provisions concerning travel mileage. The contractors, on their part, also proposed a 2-year contract, abolition of the contract provision for time off to vote in general elections, a management prerogative clause, 9 hours of pay for 8 hours of work on the "second shift," i.e., night work, and revisions downward of both travel pay and zone differentials On March 19, at the second meeting, the committees reached quick agreement on a 2-year term for the contract and on a provision requiring the employers to post bonds for payment of wages due The contractors abandoned their proposed management clause and their request that the Union employ a paid business agent; they insisted, however, on downward revision of travel pay and they completely rejected the Union's proposal for a 6-hour day " February 24, March 19, and April 9, 21, 26, and 29 There was also some evidence that there was a meeting on March 12 but this date may have been confused with March 19 CAPITAL DISTRICT SHEET METAL whenever employment dropped below 80 percent as totally unworkable and insisted on setting that matter aside. They also rejected the idea of paid holidays, although the Union reduced its request to two and, contending that the Union's request for wage rate increases of 30 and 25 cents was really a request for an increase of 43 and 60 cents by reason of other "money" requests, they suggested a detailed discussion of such requests. They then made their first offer of a wage rate increase: 10 cents in each of the 2 years of the contract There was considerable discussion concerning the Union's proposal for a shorter workday if it were adopted by the named trades Since the contractors questioned tying the working hours of the insulators to electricians and carpenters , and pointed out that insulation work was dependent, not on these trades, but on the plumb- ers and sheet metal workers upon whose completed installa- tions the insulators customarily worked. The contractors also pointed out that there was such a notable scarcity of working manpower in the craft that residents of Canada were coming in to help with the work, and they firmly opposed shortening the workday Accordingly, they moved on to other issues Between that meeting and the following one on April 9, the employers' committee met privately with Rossworm and made a proposal on the reduction of the workday which, they felt, would relieve the situation Although Mullen described the contractors' proposal as the result of "an inspiration," he also testified that it was practically the same as the proposal originally advanced by the Union, the sole difference being that the Union proposed that the workday be reduced to 7 hours if the workday of the electricians, masons, or carpenters were reduced, whereas the contractors proposed that it be conditioned upon reduc- tion of the workday of the "major trades" with which they were associated, i.e., the plumbers." Rossworm requested that the contractors put their under- taking in writing but this request was refused on the ground, according to Mullen, that he feared the document would be circulated among the negotiators in the other crafts. Rossworm promised to take up the proposal with the executive board of the Union 36 The April 9 meeting opened with a discussion concerning a recent Board Decision on the propriety of certain hiring hall practices and then developed into a controversy over the extent of the authority of the negotiating teams The contractors pointed out that their committee was empowered " Mullen also made reference to the electricians but neither he nor the record discloses how the work of the heat and frost insulators was related to that of the electricians 11 It is clear that the contractors made the question of shortening the workday dependent upon whether the workday of other trades was shortened Whether the proposal was that , if the other trades (whichever they were) agreed upon a shorter workday, the Asbestos Contractors would automatically adopt it, or whether their proposal was limited to a promise that they would negotiate concerning it, is not clear Moreover, whether the request of the Union, claimed to have been refused by the contractors , was that the understanding be evidenced at once by a short , written document, or whether it was that this understanding be included as a provision of the collective-bargaining contract when agreement should have been reached, is also not clear nor is it clear whether the contractors ever proposed that such provision be written into the contract In the view I take of this case, however it is not necessary to make a finding on any of these questions 711 not only to negotiate but that it could execute a contract based upon agreement reached" but the union committee conceded that it was required to submit everything to the general membership The committees then made an effort to separate categories those which involved money and those which did not According to Mullen, although the Union asked that the electricians be eliminated from the trades whose workday would affect the length of their own workday, the question of the 7-hour day was not even discussed because they were so occupied with consideration of "money" issues The meeting of April 21 produced little progress, although Union President Hamilton testified that all proposals still in issue were discussed The contractors raised their wage rate offer from 10 to 12-1/2 cents each year, while the Union held firmly to its demand for 30 and 25 cents, the Union reduced its demand for paid holidays to a single day and 2 hours off for voting on Election Day, and its wage differential in the outlying zones to $1 Although Mullen testified that the contractors were expect- ing to hear the Union's views on the contractors' proposal to Business Agent Rossworm concerning the conditional reduction of the workday, nothing was said on that particu- lar matter The only discussion of the 7-hour day, according to Rossworm, was a discussion of what the other trades were doing about it and a statement by the contractors that the other trades had not decided what to do about it and that they, therefore, could not make any concessions with respect to it. Both the minutes of the April 26 meeting and the testimo- ny concerning it show that it was mostly devoted to intensive bargaining on the money issues. The union committee report- ed that the membership adhered to its demand for wage rate increases of 30 and 25 cents for the 2 years, one paid holiday and 2 hours off for voting on Election Day, and a $1 differential in the outermost zones. Later in the meeting, however, the committee lowered its wage rate demand to 25 and 25 cents and dropped the requirement for 2 hours off on Election Day The contractors raised their wage rate offer to 20 cents and 20 cents, claiming that this raise, with fringe benefits, actually amounted to 34 cents, and they refused the paid holiday With respect to the 7-hour day, Mullen testified that the contractors noted that there had been no union reaction to the offer made by the Association to conform to the other trades on this point and asked for an answer After a short discussion it was determined that the Union wanted to reduce the arrangement to writing, while the contractors insisted on keeping it verbal, and the matter was permitted to remain in that condition. It was on the same day as this meeting that the joint statement was signed by the employer chairmen of all the negotiating committees affirming their refusal to reduce the length of the workday Mullen's name appears handwrit- ten on the statement but he denied signing it or authorizing anyone to sign it for him. He refused, however, to disavow the undertaking set forth in the statement " All four employers in the Association were represented on the committee 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When he went to the meeting of April 29, dust before the expiration of the contract, Union President Hamilton testified that he thought the parties were so close to agree- ment that the meeting would see the signing of a contract. Mullen also testified that he felt that they were close to an agreement However, both of them, as well as Ross- worm, testified that spokesmen for both sides stated that, if final agreement were not reached at that meeting, each side would revert to its original proposals The minutes show that the Union stipulated that it was willing to continue negotiations despite the termination of the agree- ment An additional indication of the closeness of the parties to agreement was their considerable discussion as to whether the men would be able to work beyond the termination of the contract. The employers, while conceding that they couldn't provide work if there was no completion of underly- ing work, like piping and duct work, urged the Union to come to an agreement, they said that they had "a trick or two up their sleeve" to keep the men working, explaining that they would send them to outlying areas to work. The employers did, however, point out that they would not keep the men working if employer picket lines should be established at the fob sites but they declined to predict the circumstances under which and the persons by whom such picket lines might be set up. The meeting closed with an undertaking by the union committee to submit the contractors' offer to the member- ship as quickly as possible. On Saturday, May 1, Business Agent Rossworm telephoned Mullen to say that the union members had rejected the offer but that, in accordance with the Mayor's call for a moratorium on work stoppages, they would report for work the following Monday, May 3. 6. Carpenters contractors whether, if any other union obtained a shorter workweek, the negotiators could reopen and take up that question. The employers' spokesman said that they could and, at this or one of the later meetings,1e a short stipulation to that effect, typed without copies, was given to the union committee with the understanding that it was to be kept in safety and secrecy Both Rubin and van Eekeren testified that there were "a couple" of meetings between the second meeting and the last one during the term of the contract, and that the last one was held April 29 At one of these, according to Rubin, the chairman of the contractors' committee showed the union committee the point statement, signed by the chairmen of all the negotiating committees, pledging themselves to adhere to the 8-hour day 39 When the negotiators met on April 29 they were, accord- ing to Rubin, "pretty close to an agreement," the employers having offered the Union 17 cents an hour for each year of the contract, and he could not remember any other issues. Although van Eekeren testified that the two unre- solved issues were the industry fund and the shorter work- week, he also testified that the question of the shorter workweek had been dropped with the delivery of the contrac- tors' undertaking to reopen the issue under the stated circumstances.40 Accordingly, I accept Rubins' testimony that, at the close of the April 29 meeting they were "a little bit apart on wages" and nothing else. The union negotiators promised to consult their members and to call the contractors on May 1, Saturday, to arrange a final meeting. During this meeting, however, the union men asked the contractors whether they were going to shut down the fobs on Monday: the employers said they were not but, when asked about Tuesday, said that that would depend upon whether they "got struck." 7 Laborers The parties to the collective-bargaining contract covering carpenters, expiring April 30, were Eastern New York and the Carpenters District Council of Albany, Troy, Sche- nectady, and vicinity. The negotiating committee for Eastern New York consisted of eight general contractor members and, in addition, Managing Director van Eekeren who attended most, if not all, of the meetings. His testimony and that of Donald Rubin, one of the employer-members of the committee, constitutes all the evidence in the record concerning these negotiations The first negotiation meeting was held early in April and there were five or six other meetings before the contract expired at the end of that month. At the very first meeting the contractors noted that the Union proposed a reduction in the workday to 7 hours and they stated that no other subject could be considered until this point was settled. Most of this meeting was devoted to the question of the shorter workweek, despite the Union's request that they move on to other items, since the employers contended that their action on other items "had a great bearing" on their disposition of the question of the shorter workweek A second meeting was held "very shortly" after the first and, at this time, the union committee agreed to negotiate on the basis of an 8-hour day but asked the In the negotiations for the separate contracts between Eastern New York and the area locals of the Laborers Union, the employers were represented by Managing Director van Eekeren and a committee drawn from the general contractors Negotiations were conducted separately with Local 190 of Albany and Local 452 of Troy, with the third local involved, Local 157 of Schenectady, undertaking to abide by the results of the negotiations with the Albany local. " Rubin was not certain whether this conversation occurred at the first meeting and van Eekeren testified that the side agreement was reached on April 14 and signed on Good Friday (which was, in 1965, April 16) These two accounts are sufficiently close to justify a finding that the writing described came into existence on April 16 " This statement came into existence on Monday, April 26, so there was either a negotiation meeting on 1 of the first 3 days of that week or the chairman of the contractors' committee showed it to the union committee at the final meeting on Thursday, the 29th 4' According to van Eekeren, Union Negotiator Gardner had assured him, on April 21, that the carpenters would not strike for the shorter workday and that he told Gardner that the Board of Directors of Eastern New York had decided to recommend a shutdown on May 3 but this could be changed "if the unions dropped their shorter work week demand." He also testified that Union Negotiator Hammel "kept coming back to the shorter work week" despite the assurances of Gardner that "a contract would be signed by the end of the month " This latter testimony is highly subjective and I do not find that it accurately reflects a material element of the negotiations CAPITAL DISTRICT SHEET METAL Edmund Corina, in 1965 the vice president of Eastern New York, was the chairman of the employer negotiating committee and he, as well as Managing Director van Eekeren and Business Agent John F. Probeck of the Troy local, testified concerning the negotiations. From their testimony, it appears that there was but a single negotiating contact with each of the locals, both about the middle of April. In the second week of April, van Eekeren testified, he telephoned Charles Mirabile, business agent of the Albany local, and asked when they could meet. Mirabile said he was tired of "holding the bag" by settling first and seeing other crafts obtain greater wage increases; that he would let the employers know when he was ready to meet with them. The only other testimony concerning the negotiations with the Albany local is van Eekeren's statement that Mirabile assured him that his members would not strike for a 7-hour day. There is no contrary testimony and accordingly I accept van Eekeren's testimony. There is no substantial dispute concerning the single meeting between the employers and the representatives of the Troy local Probeck testified that they met about April 14; that he delivered the Union's proposals, including a request for a 30-cent wage rate increase for each year of the proposed 2-year contract The employers termed the wage rate increase "ridiculous" and offered 15 cents a year. Probeck then said he would accept 20 cents each year and sign a contract at once but the most that the employers would do was to give him a promise that, if the other crafts obtained a greater wage rate increase, the Troy laborers would also get the greater increase Probeck refused because, he said, he could not trust the employers to carry out their promise. Corina corroborated Probeck's testimony concerning the discussion of wage rates and the fact that they separated without agreement. They also agree that the Union made no request for a shortening of the workday.41 8. Operating Engineers The local of Operating Engineers with which Eastern New York conducted negotiations prior to May 1 was Local 106, of Albany, representing the operators of the machines customarily covered by this union.42 Although the General Counsel did not adduce any evidence concerning these negotiations, van Eekeren testified, in Respondent's defense, that Business Agent McGraw stated that the mem- bers of Local 106 had authorized the negotiating committee to call a strike, that he, van Eekeren, had accused McGraw of delaying negotiations, and that McGraw had said that, although the operating engineers were not themselves inter- 41 According to van Eekeren, they offered Probeck a wage rate increase of 20 cents each year on condition that any announcement of settlement fix the increases at 15 cents He also testified that Probeck asked a 35-cent-per-year wage increase and a 7-hour day but soon dropped the 7-hour day request I accept the testimony of Conna and Probeck, rejecting that of van Eekeren on these points " The labor organization representing the surveying employees in the Albany area was Local 545-D of the Operating Engineers, with headquarters in Syracuse, and the contract covering these employees was not to terminate until December 1966 713 ested in obtaining a shorter workday, they were committed to support the Building Trades Council in its effort to that end. George P. Moran, business representative of Local 106, was called in rebuttal; he disputed van Eekeren's testimony that the union representatives expressed disinter- est in a shorter workday and that accusations of delaying negotiations had been directed at McGraw He did concede, however, that when the union representatives requested a shorter workday they stated that they would not strike specifically for that provision Moran also testified that, in rejecting the union request for a shorter workday, the contractors stated that they, and all the other employer negotiating committees, had no authority to agree to any- thing less than an 8-hour day and 40-hour week I find it unnecessary to resolve the minor conflicts in the testimony of these witnesses. 9. The lathers The only testimony concerning the negotiations with the lathers was given by van Eekeren, on behalf of Respond- ents, who testified that Eastern New York conducted com- bined negotiations with the Albany and Schenectady locals and entered into separate but similar contracts with them; that this craft customarily received the same wage rates as the masons. He testified that he attended one of the negotiation meetings, in the third week of April, at which they discussed a shorter workweek, the industry fund, and wages; that, in discussing the shorter workweek, the union representatives stated that they were committed to the 7-hour day by their membership; that he was later informed that the union negotiating committee had agreed to take the contractors' offer-based on an 8-hour day 40-hour week-back to their membership but the following day, April 29 or 30, the union representatives informed him that they would not put the offer before their membership because "both unions were committed to a seven hour day." As historical background for the union's position, van Eekeren testified that in 1963 the lathers had struck for a shorter workday and that, after the strike was settled on the basis of an 8-hour day, the men pursued a practice of working only 35 hours a week by quitting 5 hours early on Fridays, until an International union representative intervened to assure observance of the contract. C The Lockout As shown above, the union effort to shorten the workday was not new, and it had a broad base among employees in the building construction industry in the Albany area. Similarly well recognized was the employers' opposition to the union effort. Prior to 1965, however, the employers were sparing in their use of the lockout as a defense to the union effort, presumably because of the uncertain state of the law. It is notable that, when the Board of Directors of Eastern New York met on February 16, it used a euphemism when it agreed with its recently estab- lished General Labor Committee47 that: 43 Consisting of the officers and chairman of all negotiating committees, whether they were engaged in contract negotiations or not 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a demand for a shorter work week would be resisted and that the organization would protect itself in case the economical operation of the jobs would be jeopardized by any or all unions after the expiration date The resolution prepared by Managing Director van Eekeren for adoption by the general membership of Eastern New York at its meeting on March 2 similarly featured "self- protection" if "economical operations would be jeopardized" but went further and authorized the Board of Directors to call for a shutdown should an impasse be reached in negotiations. The decision of the Supreme Court in the American Ship Building case" on March 29 was prominently displayed in the March 31 issue of the Bulletin of Eastern New York, distributed periodically to its members and others, under the headline. A MOMENTOUS DECISION LOCKOUTS DECLARED LEGAL UNITED STATES SUPREME COURT RULES AGAINST NLRB AND FOR MANAGEMENT Shortly thereafter, during the month of April, intensive negotiations began in the several units and, as detailed above, there was threaded throughout the negotiations the expressed determination of the employers, under the pressure of Eastern New York, to lock out the employees, if necessary, in order to prevail in their opposition to the shortening of the workday in 1965 McManus testified that he constant- ly carried on a campaign for standardization of working conditions in the field of building construction, that the industrywide adamant opposition to any shortening of the workday was his "baby", and that he took the chairmanship of the masons' negotiating committee to assure the mainte- nance of such opposition in that area It was McManus, also, who took the lead in preparing the statement of April 26, signed by the chairmen of all negotiating commit- tees, stating their refusal to accept any shortening of the workday. Similarly, the record shows, van Eekeren's partici- pation in negotiations with several of the crafts resulted in his broadcast of the message that the employers through- out the industry would lock out the employees to prevent any shortening of the workday Also during this same month of intensive negotiations, members of Eastern New York were receiving the periodic Bulletins from that association The April 14 issue states- The General Labor Committee has reiterated the posi- tion of the general membership of Eastern New York to unconditionally oppose any demands for a shorter work day or work week. * the membership should remain alert as to the possibility of a general work stoppage and should 14 American Ship Building Co v NLRB, 380 U S 300 take measures to cope with the situation if and when it occurs. This stated "possibility of a work stoppage"-implied by the unions-was converted into the expressed determination of the employers to take affirmative action when, on April 21, Managing Director van Eekeren sent a "directive" to all members informing them that the Board of Directors, on recommendation of the General Labor Committee, had "decided to call for a shutdown on Monday, May 3, 1965" and requested all members "to fully comply." On April 29, the General Labor Committee met, discussed the status of the various negotiations, and recommended that the Board of Directors request the employers to continue to work on Monday but to close down their jobs at the end of that day The Board of Directors agreed and Eastern New York prepared and dispatched another communication, dated April 29, which referred to the directive of the 21st and modified the effective time of the shutdown to occur "at 4:30 (closing hour)" on May 3 Both letters referred to the decision of the Supreme Court as legal justification for the shutdown The press release issued by Eastern New York on April 30 refers to the demands of some of the unions for a shorter workweek, the opposition of the employers, and states that "it seems incomprehensible that Unions would push for a shorter work week, thereby causing a workstoppage " The contracts terminated Friday, April 30; on Saturday, May 1, Local 6 of the Masons, representing the Albany bricklayers and plasterers, held a special meeting to consider the employers' offer While the attitude of the members appears to have been clearly opposed to the contractors' offer, since it was based upon continuation of the 8-hour day, the union officials prevented the taking of any formal action and told the members to make individual decisions on whether to report for work Monday morning The record shows the members' responses to have been as diffuse as their instructions: on Monday, some reported and worked; some reported and refused to work; and some failed to report On Saturday, however, some efforts were made to avert the expected crisis: the Mayor of the city of Albany sent a telegram to Eastern New York requesting that efforts to negotiate new contracts be intensified and that any work stoppage be postponed for at least a week. At about 1 p.m, and prior to receipt of the telegram, Managing Director van Eekeren, of Eastern New York, and Henry Landau, president of the Albany Building Trades Council, had a telephone conversation in which they referred to the problem of the bricklayers' uncertainty about reporting for work on Monday and to the employers' requirement that the demand for the shorter workday be dropped. Later that afternoon, Eastern New York answered the Mayor with a telegram stating that it had learned that the bricklayers had voted to remain away from work and that therefore, there was no point in its asking its member- employers to comply with his request On Monday, May 3, practically all employees-except bricklayers-worked as usual but, as stated, many of the bricklayers either failed to report or reported and refused to work The various situations were reported to van Eekeren CAPITAL DISTRICT SHEET METAL 715 at the offices of Eastern New York and, about the middle of the day, a telegram was prepared and sent to all members of Eastern New York, stating that "various unions struck today for seven hour day"; that operations could not contin- ue "under these drastic conditions"; and that all jobs should be closed at the end of the day Most of the members complied" and instructed their employees not to report for work the following day and until further notice. In some cases some work continued for a day or two46 but the lockout was substantially complete and effective. The record shows, and I find, that the work stoppage was generally due to the call of Eastern New York, that, although there were jobs at which members of the masons' unions failed to report, in most instances their absence did not make it impossible for the members of other craft unions to perform their duties In any event, Respondents' counsel, at practically the end of the trial, stated that it was not contended that the absence of the masons was the cause of the closing down of most of the jobs and their brief states that Respondents in their defense herein rely on the fact that they engaged in "defen- sive conduct." The record shows that Eastern New York and the other Respondents, in effecting the lockout, temporarily interrupt- ed the employment of 432 of Respondents' employees. The names of the employees and their respective employers are set forth in the schedule, Appendix B hereto. Some of these employees were covered by contracts which were in full force and effect The lockout continued until approxi- mately May 8. D. Contentions of the Parties The General Counsel contends that, in the negotiations and subsequent lockout, the Respondents acted jointly with each other and with the nonrespondent employers and associations and that the bargaining policies of the employers in different units were fixed, at least in part, by the General Labor Committee of Eastern New York; that the Respond- ents involved in the sheet metal and asbestos workers' units interfered with employee rights by threatening a lock- out and that they failed to bargain in good faith: (i) generally; (ii) by attempting to force the representatives of employees in the several units to bargain as a single unit; (iii) by adhering to a preconceived resolve to refuse any agreement to shorten the workday; and (iv) by refusing to conclude agreement in either of these units unless employee represent- atives in other units agreed to retain the existing 8-hour day The General Counsel further contends that Respond- ents' lockout of their employees was not justified as a defense to the unions' conduct and that it was violative " John P Hand, president of Respondent John P Hand Heating & Air Conditioning Corp, a member of Respondent Sheet Metal Associa- tion, testified that he did not lock out his employees but continued them at work except where prevented from doing so by the closing down of the job involved Accordingly, the names of his employees do not appear on the schedule of employees locked out " Nonmember employers who failed to close down were requested to do so by officials of Eastern New York and efforts were made, by picketing conducted by officials of that association , to force them to do so. of the Act. With respect to some specific Respondents, the General Counsel contends that they unjustifiably locked out employees covered by unexpired contracts and thereby violated Section 8(a)(5) as defined by Section 8(d)(4) of the Act. Respondents contend that the General Counsel, having failed to adduce evidence concerning the negotiations with seven additional unions whose contracts also expired April 30, has thereby failed to prove a "common scheme of negotiations" and that the employers' approach to negotia- tions, although they all opposed any shortening of the workday, was not consistent or uniform With respect to the lockout, Respondents claim alternately: (i) that they engaged "in defensive conduct to the unions bargaining threats and strike on May 3, 1965," or (ii) that, even if there was no strike on May 3, Respondents were justified, by the decision in American Ship Building, in using the lockout "offensively, to put economic pressure on the unions to change their bargaining position." E. Discussion and Conclusions I Preliminary matters In view of the lack of serious conflict in the evidence, several factual matters can be disposed of preliminarily. On this record there can be no doubt that, whatever may have been the established relationship among Eastern New York, the specialized employer associations, and their respective members,07 Respondents acted in close coopera- tion with each other and with other members of Eastern New York to present a united front against any shortening of the workday or workweek Both John L. McManus, chairman of the general contractors negotiating committee, and Wilhelmus A. van Eekeren, the Managing Director of Eastern New York, testified to their determined and successful efforts to keep all the employer negotiating com- mittees united and unyielding on this subject There can also be no doubt that, in several sets of negotiations, affirmative threats of lockout were made by employer representatives48 and that the general background of negotiations, set by Eastern New York, relied strongly on the probability of an industrywide lockout in support of employer insistence on maintaining the existing workday and workweek. The third matter which I find thoroughly established by the record is the fact that the respondent employers, acting in concert with each other and with the respondent " i find it unnecessary to make specific findings in this area, other than those set forth in section 1, above " These threats , in my opinion , were part of the bargaining process and cannot be held to be, as the complaint alleges , independent violations of Section 8(a)(1) of the Act Paranite Wire & Cable Division, etc, 164 NLRB No 48, cited by the General Counsel in support of that position, is distinguishable in that the threats in that case were not made in the course of normal negotiations, as here, but were voiced by the employer directly to the membership of the union It was under those particular circumstances that the Board held that they constituted coercive interference with protected activities and "an inexcusable intru- sion into the private affairs of the Union and the employees it represented " 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD associations, locked out their employees at the close of business on May 3 and thereafter. While there is testimony that some of the masons failed to report for work on May 3, and the General Counsel adduced a great deal of testimony on whether certain craft employees could have continued to perform their duties despite the absence of other crafts, Respondents took the unequivocal position, through the above statement by counsel close to the end of the trial, that their defense was not based upon the failure of the masons to report for work" Accordingly, I find that the work stoppage involved herein was caused by Respondents in locking out the employees of the respond- ent employers On the other hand, upon consideration of all the evidence, it seems clear that the record will not support a finding that any of the Respondents failed to bargain in good faith in the ordinary meaning of that term, since they met and discussed all proper subjects, notwithstanding their adamant refusal to agree to any shortening of the workday, and they continued discussions even after the lockout. Nor will the record support a finding that Respondents insisted that they would bargain only on a multiunit basis: on the contrary, once the Thruway Motel proposal for overall bargaining had been rejected by the unions, there is no evidence of any substantial effort by the employers to force the unions to bargain as a single unit and there is abundant evidence that they conducted negotiations in the separate, established units. Finally, it is clear to me that the record will not support any finding of union animus in the customary sense of that term- in other words, it cannot be said that any action or position of the Respondents was designed to discourage union activity, to evade bargaining, or to destroy the existence or representa- tive status of any of the unions involved 2. The issues Although it has been necessary, in view of the theory advanced and the evidence adduced by the General Counsel, to describe the negotiations in eight separate crafts, the complaint alleges violations of the Act connected with the negotiations and lockout in only two of the units the sheet metal workers by the named sheet metal contrac- tors and the asbostos workers by the named insulating contractors. The complaint, in addition, alleges violations in the specifically charged lockouts: (a) of carpenters and laborers by Respondent Nicholson; (b) of surveying employ- ees by Respondent Basic; (c) of laborers by Respondent Kilby; (d) of teamsters by Respondents Basic and Cooley- Glenmont; 50 and (e) of sheet metal workers by Respondent Latham. " Respondents' brief makes reference to "economic justification for the shutdown" in the failure of some masons to report for work However, I regard the statement of counsel during the trial as binding since it was made in a context showing due deliberation and it was accepted as the basis for evidentiary rulings so The complaint originally alleged this violation by Cooley but when, during the trial, it became apparent that the locked out drivers were actually employed by Glenmont, performing services for Cooley under a contract between Cooley and Glenmont, and that the two corporations were owned by members of the same families, the complaint was amended to charge Glenmont with the violation These alleged violations, furthermore, fall into two groups which appear to call for separate discussion and disposition. (a) those by the respondent sheet metal and insulating contractors-and the other Respondents allegedly acting in concert with them-who were negotiating new contracts to succeed contracts terminating April 30; and (b) those by Respondents Nicholson, Basic, Kilby, Cooley-Glenmont, and Latham in locking out employees covered by collective- bargaining contracts which were still in midterms' 3 The validity of the bargaining lockouts The account of negotiations shows that the initial propos- als of seven of the eight crafts described included a shorten- ing of the workday .52 The intensity with which this proposal was pressed , however , varied from the absolutely adamant insistence of the masons and lathers, through the strong pressure by the sheet metal workers and plumbers, the not-so-strong pressure by the asbestos workers and the acceptance of conditional assurances by the carpenters, to the frank admission by the laborers and operating engi- neers that they would not strike to obtain it. The employers also took more than one position : the masonry, lathing, plumbing, and sheet metal contractors adamantly refused to discuss the subject; the asbestos and carpentry contractors agreed to conform if the major trades agreed on a shorter workday, the contractors employing operating engineers claimed they "had no authority " to bargain on the subject; and, in the discussion concerning a contract covering labor- ers, the issue was not raised . The adamant position of the masonry, lathing, plumbing, and sheet metal contractors, however, made ineffective the conditional undertakings of the asbestos and carpentry contractors. In view of the factual situation set forth above, the disposition of this case, in my opinion , must be governed by the Board's Decisions in the Detroit News57 and Darling" cases, which appear to state the major principles now applicable in determining the validity of bargaining lockouts under the status afforded them by the Supreme Court in American Ship Building Co. v. N.L. R.B.55 In the American Ship opinion the Supreme Court, over- turning the Board rule that made employer lockouts unlaw- ful except when based on specific defensive necessities, enunciated general principles in this area . It held, primarily, " The complaint also alleges that the members of Sheet Metal Associa- tion locked out their employees on May 3 and 4 when the contract "remained in full force and effect" This allegation is based upon the provision in the expiring contract extending its term "until conferences relating thereto have been terminated by either party " As noted at the end of the factual account of the sheet metal negotiations , however, Chairman Wmdelspecht of the employers' committee closed the meeting of April 30 with the statement that he was declaring the contract confer- ences terminated Although the General Counsel's brief seeks to draw some unfavorable inferences from this declaration, he does not attack its validity for the purpose of terminating the contract and I accept it as such termination " The laborers did not request a shorter workday " The Evening News 4 cco, iatwn Oi, ner and Publisher ^,/ The Den-It News," etc, 166 NLRB No 6, review denied sub nom. Newspaper Drivers & Handlers' Local No 372 v N.L.R B., 404 F 2d 1159 (C A 6), cert denied May 26, 1969, 395 U S " Darling and Company, 171 NLRB No. 95 " 380 U S 300 CAPITAL DISTRICT SHEET METAL 717 that an employer's use of a lockout solely in support of a legitimate bargaining position is not inconsistent with the right of the union to bargain collectively. It also held that a lockout does not necessarily have a "natural tendency" severely to discourage union activity while serving no signifi- cant employer interest, and that the lockout does not carry any necessary implication that the employer thereby acted to discourage union membership or otherwise to discriminate against union members as such In that case, accordingly, the Court held that, since the record did not show that the lockout was motivated by hostility to the union or by an effort to evade the bargaining obligation and that it had not been shown that the lockout would necessarily destroy the union's capacity for effective representation, but that the only intention proven was to resolve an impasse and bring about the settlement of a labor dispute on favorable terms, the employer's conduct did not violate the Act. In the Detroit News case the Board, having recalled its earlier decision56 for review in the light of American Ship, applied the general reasoning of the Supreme Court to a situation in which a respondent employer-the publisher of the Detroit News-locked out its distribution employees after the termination of their contract in aid of its bargaining position with the Teamsters union which had struck another employer, whose distribution employees it also represented- the publisher of the Detroit Free Press-over similar issues Both employers were members of an association which handled their labor relations but there did not exist, with respect to the distribution employees, a multiemployer unit Before the commencement of the strike against the Free Press and before they received the Teamsters' contract proposals, officials of the News met with officials of the Free Press to discuss their common problem vis-a-vis the Teamsters. As the Board stated: The News concluded that of the 18 or so issues remain- ing between the Teamsters and the Free Press, 10 were also of interest to the News in its negotiations with the Teamsters. Of these 10 issues, the News considered 3 as being vital in its bargaining and urged the Free Press to maintain its position on these under all circumstances The News agreed that if the Team- sters struck the Free Press over its refusal to accede to any of those three demands, "the News would support the Free Press and would not publish." When the Teamsters struck the Free Press, the News also suspended publication but its employees reported for work and were paid for the first 3 days. On the fourth day, however, it published, together with the Free Press, a combined edition which was distributed by News distribu- tion employees and, when this had been completed, the News notified its distribution employees, and some others, not to report for work until further notice. On April 19, after a 4-day lockout, the disputed issues were resolved and the News terminated its lockout. The Board stated that the sole issue before it was whether the News lockout of its distribution employees, for the 4 final days of the stoppage, was violative of Section 8(a)(1) and (3) of the Act. After noting that the Supreme Court, in American Ship, had held that an employer could lock 56 145 NLRB 996 out its employees, after an impasse had been reached, "for the sole purpose of bringing economic pressure to bear on the union to accept the employer's legitimate bar- gaining position," the Board found that the lockout by the News "was preponderantly designed to force the union to accept [its] bargaining proposals." Furthermore, the Board found also pertinent to its consideration of the case the impact of the News' agreement with the Free Press to lock out its employees if the union struck the Free Press and the fact that the lockout had that stated purpose. Noting that the "key demands" of the union were being pressed upon each of the employers simultaneously, the Board held that the interest of the News in using economic pressure to implement its own bargaining was "grounded upon a very real, direct, and immediate bargaining motiva- tion in its own behalf' and dismissed the complaint against the News. With the important parenthetical notation that the Board, in its subsequent decision in Darling and Company, supra, eliminated the necessity that negotiation lockouts be prem- ised upon an impasse in bargaining , we return to consider- ation of the Board's principles in the Detroit News decision as applied to this case. As the Board's opinion in that case clearly implies-and as Member Brown's dissent explicit- ly states-the fact that the lockout by the News was to assist another employer in a dispute with its employees was relevant to a consideration of whether, assuming no express evidence of union animus or evasion of bargaining, the lockout was "inherently so prejudical to union interest and so devoid of significant economic justification" that no such evidence of unlawful intent was necessary The interest of the News in supporting the Free Press position in bargaining with the Teamsters was assumed, without discussion, by the board, although the interests of these two employers vis-a-vis the union cannot be described as anything more than parellel.°' In this case, however, the interests of the several groups of employers are more than parellel, they are inextricably interwoven- not only is the record replete with evidence concerning the interrelated activities of the different crafts in the construction of a building, but the relationship (which could even be assumed on the basis of judicial notice) has been noted by the Board in the following terms- . cognizance must be taken of the peculiar conditions which prevail in the building and construction industry, as reflected in the record, and in particular the close interdependence and the necessary operational sequence See Publishers Arrn, of N Y, 139 NLRB 1092, affirmed 327 F 2d 292 (C A 2, 1964) Compare David Friedland Painting Co., Inc, 158 NLRB 571, enfd. 377 F 2d 983 (CA 3), where the Board and court held violative of Section 8(a)(3) the employer's lockout of employee- members of a painters local union which had no direct contractual relationship with that employer and with whom it was not bargaining, although it was engaged in bargaining with another group of employers Conceding that the tendency of the lockout to discourage the employees' membership in the union was slight, the court nevertheless held that it looms large when compared with the economic justification for Fried- land's action." In other words, Fnedland 's interest in the bargaining position of the other employers, who were negotiating with another union in another geographical area, was not sufficient to justify his lockout of employees in that other union 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the different craft functions inherent in commercial construction.56 Furthermore, it is obvious that any variance in the length of the working day among the several crafts would be disruptive of construction procedures and would, in its effect, limit the workday substantially to the hours of those employees working the shortest time. The power and light obtained through the services of the electricians is vital to the performance of services by most of the workers, the operation of lifts and other machinery by the operating engineers is also necessary for much of the work and the flow of materials; the carpenters must build and disassemble the forms into which concrete is poured by laborers after being brought to the place of pouring by engineers, while the concrete finishers (masons) treat the poured concrete so that it may serve as a foundation for another layer. While the record shows that some crafts can perform some work in the absence of others, the general interdependence is sufficiently shown to justify the employers' contention that operations on staggered hours would be both difficult and expensive.59 Accordingly, I find that the interest of the employers in the several crafts involved in this case are sufficiently interwoven to justify their taking common action in their common interest. For the foregoing reasons, I conclude that Respondents' action in locking out their employees covered by contracts expiring on April 30 was in support of their bargaining position on an important issue, the maintenance of the 8-hour day, and that, therefore, the lockout did not violate Section 8(a)(1) and (3) of the Act. 4 The validity of the lockouts of employees covered by contracts still in effect As stated above, in addition to the sheet metal and insulating employers, who were engaged in collective bar- gaining for contracts to succeed those expiring April 30, the complaint alleges violation of Section 8(a)(5) of the Act, as defined in Section 8(d)(4), by the employers who locked out employees covered by contracts which were still in midterm. Since the legal question involving these lockouts is subor- dinate to that involved in the bargaining lockouts, the facts concerning them have not been set forth in detail thus far in this Decision and this omission will be remedied at this point. Latham Sheet Metal, referred to above in connection with its commerce, is a close affiliate of Bickford & Moshier, a member of the Mechanical Association (Albany plumbers), having identical officers, directors, and stockholders and sharing offices. When Latham began business in 1963, it executed a copy of the then current contract of Sheet Metal Workers Local 83 with Sheet Metal Association 5i Central California Chapter, The Associated General Contractors of America, Inc, et al, 105 NLRB 767, 768 " It is to be noted that McManus specifically stated that all economic issues were related to the length of the workday and that both he and van Eekeren stated that only if the demand for a shorter workday were abandoned would the employers suspend their plan to close down, and continue negotiations for an additional 30-day period as its contract with the Union and thereafter employed members of that union under its terms. The contract provid- ed that it should "remain in full force and effect until the 30th day of April, 1963, and shall continue in force from year to year . . unless written notice of reopening is given not less than ninety (90) days prior to the expiration date " Neither Latham nor the Union gave notice of reopen- ing60 and it is clear that the contract between Latham and the Union had been thereby automatically renewed until April 30, 1966 On May 3, Latham had six nonsupervisory employeesb1 under the direction of General Manager Kavanaugh; they were working on three jobs: the General Electric installation at Waterford in Saratoga County, the Troy filtration plant in Rensselaer County, and the plant of Mechanical Technol- ogy, Inc, at Latham in Albany County All of these counties are within the geographical jurisdiction of Sheet Metal Workers Local 83. At the close of the working day on May 3, Kavanaugh told the men that "the jobs would not be running" the following day Although some of the men reported at the shop from time to time during the period May 4 through 18, they did not work. Operations were resumed May 19 Basic Construction, a large general contracting company based in Newport News, Virginia, was engaged in construc- tion work on the new campus for the State University in the city of Albany. When it entered the Albany area on this job, its only one in the area, it became a member of Eastern New York and hired all of its construction personnel, except surveyors '61 under the various contracts between Eastern New York and the several unions It was the largest employer of construction workers in the Albany area. The project manager for Basic kept himself informed concerning the negotiations during Apnl and he attended the meeting of the General Labor Committee on April 29. On May 3, Basic had about 600 construction men, other than professional, clerical, and supervisory employees, at work Among these were 8 truckdnvers,61 covered by the unexpired contract with Teamsters Local 294, and 11 surve- yors,64 covered by the unexpired contract with Operating Engineers Local 545-D, as well as masons, carpenters, and laborers, whose contracts had expired. After receiving the telegram from Eastern New York calling for a shutdown, Basic handed each of the construction employees a notice stating that, "because of an industrial controversy in the area" operations would be suspended as of 4:30 that after- noon In accordance with the notice, all work by the construction employees of Basic was suspended Work recommenced May 19. Glenmont Equipment Company was added as a respondent when, during the trial, it developed that certain laid-off " The Sheet Metal Association notice could not serve as notice on behalf of Latham since Latham was not a member of the Association Set forth in Schedule B ei The surveyors were members of Operating Engineers Local 545- D with headquarters in Syracuse , New York Albany is within its geograph- ical Iunsdiction and Basic signed a contract with it covering the surveyors " Set forth in Schedule B 64 Id CAPITAL DISTRICT SHEET METAL 719 drivers, alleged in the complaint to have been employees of Respondent Cooley Contracting Co., Inc., were in fact employees of Glenmont It appears from the record that all the stock of Cooley is held equally by Frank J Cooley and Frank Zeronda and that the stock of Glenmont is also held equally by these men and their families; that Cooley and Zeronda are the only officers of both corpora- tions and that the corporations share offices. Although Glenmont takes contracting jobs on its own and rents some of its equipment to outsiders, it appears that it rents trucks only to Cooley and that it is under an agreement to supply Cooley with trucks whenever they are needed. On May 3, Cooley had jobs in operation at the State Office Campus, the State University Campus, and on nearby Washington Avenue, all in Albany. It also had a job at the Cobleskill Agricultural College in Schoharie County 65 At the same time-and presumably in connection with these Cooley jobs-Glenmont had three drivers, Charles Boehlke, John Poniatowski, and Dennis Tremont who each worked, according to Glenmont's records, 3 or 4 days during the payroll week ending May 5. Since it was admitted that Cooley closed down its jobs at the end of the day on May 3, it is a fair assumption, and I find, that Glenmont locked out these three drivers at the same time 66 Having reached the conclusion, with respect to the employees covered by collective-bargaining contracts which expired April 30, that Respondents did not violate the Act when they locked out those employees in support of an economic position during bargaining for successor contracts, the question now for decision is whether Respond- ent violated the Act in locking out the employees whose collective-bargaining contracts were in midterm and con- cerning which contracts no negotiations were pending. The complaint alleges that such violation by Respondents flows from the terms of Section 8(d)(4) of the Act, which, in pertinent part, reads as follows: 8(d) . . . [T]he duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification- (4) Continues in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract .. until the expiration date of such contract . . The General Counsel's argument, it is only fair to state, seems not to be based upon the contention that Section 8(d)(4) must be given a rigid and mechanical interpretation, so that the lockout of these employees prior to the expiration of their contracts ipso facto violates the Act. From his citation of American Stores Packing Co., el at, 158 NLRB 620, it would appear to be his contention that Respondents, 63 Schoharie County is within the geographical jurisdiction of Sheet Metal Workers Local 83 " The record discloses that Kenneth Lewis, a member of Teamsters Local 294 employed by Respondent Joyce & Kramer (presumably under the contract between Eastern New York and that local), was also laid off May 3, but the complaint does not allege that Joyce & Kramer, a sheet metal contractor, violated the Act by laying off any drivers and, therefore, Lewis' name does not appear on the list of employees in the Appendix to the complaint among those alleged to have been discriminated against by said Respondent in their negotiations prior to the lockouts, were not bargain- ing in good faith and that their conduct in locking out these employees, therefore, was a continuation or extension, by other means, of the same violation of the Act. There are several difficulties, however, with this argument- in the first place, assuming arguendo that the record required a finding that Respondents had not bargained in good faith with the Sheet Metal Workers and the Asbestos Work- ers, it is nevertheless questionable whether that interference with employee rights, that effort to discourage union mem- bership, and that frustration of the process of collective bargaining, directed at those unions and the employee-, members thereof (although they might remove, from the lockouts directed against them, the protection otherwise extended by the American Ship decision) could serve as a basis for finding unlawful a lockout of carpenters, laborers, surveyors, and teamsters, whose unions were not involved in bargaining at the time." Furthermore, insofar as the General Counsel's argument can be discerned from the cases which he cites, it is to be noted that every one of the lockouts of employees whose contracts had not expired occurred at a place within the territorial jurisdiction of one or more of the unions which were involved in bargaining (none of which has been held to have been in bad faith) with Respondents and that, therefore, they were not so remote from the principal bargaining area that the lockouts were unjustified under the principal bargaining area that the lockouts were unjustified under the standards set by the Board in David Friedland Painting Co., supra. Finally, in addition to the failure of the record to sustain the preliminary premise of the General Counsel's contention, i.e., that Respondents had not been bargaining in good faith, there is a further and, in my opinion, insuperable obstacle to any finding of violation based upon the lockout of these employees. In Mastro Plastics Corp. v. N L R. B., 350 U.S. 270, the Supreme Court affirmed the Board's Decision (103 NLRB 511) that a strike in protest of the employer's unfair labor practices, executed despite a no- strike clause in the contract and before the expiration of the waiting period prescribed by Section 8(d) of the Act, did not violate that section so as to deprive the strikers of their status as employees In so doing, the Court wrote (pp. 285-286), with respect to the employer's Section 8(d) defense: That paragraph requires the party giving notice of a desire to "terminate or modify' such a contract, as part of its obligation to bargain under 8(a)(5) or 8(b)(3), to continue "in full force and effect, without resorting to strike or lock-out, all the terms and condi- tion of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later " Section 8(d) thus seeks, during this natural renegotiation period, to relieve the parties from the economic pressure of a strike or lockout in relation to the subjects of negotia- tion. The final clause of 8(d) also warns employees " This statement, I recognize, is not applicable to the lockout of Sheet Metal Workers by Latham, but other obstacles to acceptance of the contention render this exemption academic 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that, if they join a proscribed strike, they shall thereby lose their status as employees and, consequently, their right to reinstatement The Board reasons that the words which provide the key to a proper interpretation of 8(d) with respect to this problem are "termination or modification." Since the Board expressly found that the instant strike was not to terminate or modify the contract, but was designed instead to protest the unfair labor practices of petitioners, the loss-of-status provision of 8(d) is not applicable. We sustain that interpretation. In Teamsters Local No. 741 (Los Angeles-Seattle Motor Express Inc ), 170 NLRB No 13, Trial Examiner Spencer expressly adopted, as a partial basis for his decision dismiss- ing the complaint, a statement by Trial Examiner Leff in an earlier case6B involving the interpretation of Section 8(d) that [T]he command of Section 8(d) for a 60-day notice as a prerequisite to strike action applies, not to all strikes that may occur during a contract term, but only to such strikes as are aimed at enforcing a demand to modify or terminate a collective-bargaining agreement. and the Board, without comment, adopted Trial Examiner Spencer's findings, conclusions, and recommendations.69 In American Ship Building Co., supra, the Supreme Court pointed to the provision in Section 8(d) prohibiting resort to both strikes and lockouts without compliance with the procedures set forth therein and stated that the "correlative use" of both terms in the Act contemplates that lockouts, as well as strikes, "will be used in the bargaining process in some fashion." In view of the Court's holding in that case that a bargaining lockout, untainted by motives vital for finding violations of Section 8(a)(1) and (3) of the Act, has a status similar to a strike for the same purpose, it is a fair inference that resort may be had to the foregoing cases, involving strikes, for the purpose of determining whether the lockouts of employees covered by unexpired contracts, herein held not violative of Section 8(a)(1) and (3),70 nevertheless violated Section 8(a)(5) solely through se International Union, United Mine Workers, etc. (Boone County Coal Corp, et a!), 117 NLRB 1095,1121 69 See also Local 156, United Packinghouse Workers (Du Quoin Packing Co ), 1 17 NLRB 670, in which the respondent union was held to have violated Section 8(b)(3) by sinking without giving the notices required by Section 8(d), where its answer stated that it had called a strike "on the issue of wages only " 10 I find that the purpose of these lockouts was the same as it was in the case of those involving employees engaged in bargaining, i e , to bring economic pressure to bear in aid of Respondents ' bargaining position, and that Respondents ' efforts, through these lockouts, cannot the failure of Respondents to comply with Section 8(d)(4) On the basis of those cases, therefore, I conclude that since there is nothing in the record to justify a finding that Respondents' lockouts of employees covered by con- tracts in midterm were motivated by an effort on Respond- ents' part to modify or terminate any of those contracts, those lockouts cannot be held violative of Section 8(a)(5) of the Act. On the basis of the foregoing analysis of the record and the law, I conclude that Respondents have not engaged in the unfair labor practices alleged in the complaint. Upon the foregoing findings of fact, and the entire record in this case, I reach the following: CONCLUSIONS OF LAW 1 The individually named respondents are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The associations named as respondents act as agents of employers engaged in commerce and are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. The charging unions are the collective-bargaining repre- sentatives of employees in the units set forth in the'com- plaint. 4. Respondents' statements , during the course of bargain- ing, concerning possible lockouts of employees, did not constitute an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 5. The acts and conduct of Respondents during the course of negotiations with the Charging Parties, including their lockout of employees on May 4 and immediately thereafter, did not constitute unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), and (5) of the Act 6. The acts and conduct of Respondents in locking out, on May 4 and immediately thereafter, employees covered by collective-bargaining contracts which had not expired did not constitute unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and 8(d)(4) of the Act. RECOMMENDED ORDER It is recommended that the complaint herein be dismissed. be said to be either unjustified in that endeavor by the facts in this case, or so remote, under the standards set by the Board Decision in David Friedland Painting Co, supra, as to be violative of Section 8(a)(1) and (3) of the Act CAPITAL DISTRICT SHEET METAL 721 CRAFT CONTRACTING EMPLOYER APPENDIX A A R E A Date of Contract CONTRACTING UNION Termination ricklayers, Masons astern New York Albany Bricklayers, Masons, Plasterers, Marble, Pile & Terrazzo Workers Local Union No. 6 Bricklayers, Masons, Plasterers, and Cement Finishers Construction Employers Troy Marble, Tile & Terrazzo Workers April 30, 1965 ile and Terrazzo apitol District Tile, Marble, Schenectady Albany, Local Union No 10 Bricklayers, Masons, Plasterers, Marble, Tile & Terrazzo Workers Local Union No 16 Tile and Terrazzo Division of Workers Terrazzo and Slate Troy and Bricklayers, Masons etc. Workers April 30, 1967 Tile and Terrazzo Contractors Association Capitol District Tile, Marble, Schenectady Local Union Nos. 6, 10 and 16 International Association of Marble, Stone and Slate Polishers, Rubbers Helpers Terrazzo and Slate Albany and & Sawyers, Tile and Marble Setters, April 30, 1967 Contractors Association vicinity Helpers and Marble, Mosaic & Terr- azzo Workers and Helpers Local Union No. 59 Laborers Eastern New York International Hod Carriers, Building Construction Employers Albany and Common Laborers April 30, 1965 Eastern New York Construction Employers Troy Local Union No. 190 International Hod Carriers, Building and Common Laborers April 30, 1965 Eastern New York Construction Employers Schenectady Local Union No. 452 International Hod Carriers, Building and Common Laborers April 30, 1965 Kilby Bros. Inc Newburgh and vicinity Local Union No. 157 International Hod Carriers, Building and Common Laborers May 31, 1967 Local Union N. 17 Nicholson Company U S.A. International Hod Carriers, Building and Common Laborers October 26, 1965 Plumbers Mechanical Contractors Associ- ation of the Capital District Albany United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the April 30, 1965 Bickford & Moshier, Inc. Trojan Hardware Co., Inc. Troy United States and Canada Local Union No 7 United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the pril 30, 1965 Sheet Metal Workers Capital District Sheet Metal, Roofing and Airconditiomng Northeastern New York United States and Canada Local Union No. 61 Sheet Metal Workers International Association pril 30, 1965 Contractors Association Local Union No. 83 Latham Sheet Metal Corp. Northeastern New York Sheet Metal Workers International Association April 30, 1966 Insulation Workers Asbestos Contractors Association of Albany Albany and 30 mile radius Local Union No. 83 International Association of Heat and Frost Insulators and Asbestos May 1, 1965 Carpenters Eastern New York Construction Employers Albany, Troy, Schenectady Workers, Local No. 40 United Brotherhood of Carpenters and Joiners of America; Albany, April 30, 1965 and vicinity Schenectady, Troy and vicinity District Council of Carpenters 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A (Cont'd) CRAFT CONTRACTING EMPLOYER A R E A CONTRACTING UNION Date of Contract Termination Nicholson Company U S.A. United Brotherhood of Carpenters and Joiners of America ; May 31, 1965 Hudson Valley District Council of Carpenters Lathers Eastern New York Albany Wood , Wire & Metal Lathers Construction Employers International Union April 30, 1965 Local No. 166 Eastern New York Schenectady Wood , Wire & Metal Lathers Construction Employers International Union April 30, 1965 Local No. 120 Operating Eastern New York Northeastern International Union of Operating April 30, 1965 Engineers Construction Employers New York Engineers, Local No. 106 Basic Construction Co. Upstate New York International Union of Operating December 31, 1966 (surveying) Engineers , Local 545-D Teamsters Eastern New York Albany International Brotherhood of Team- Construction Employers sters, Chauffeurs , Warehousemen April 30, 1967 and Helpers of America Local Union No. 294 Iron Workers Eastern New York Eastern International Association of Bridge, Construction Employers New York Structural and Ornamental Iron May 31, 1967 Workers, Local Union No. 12 APPENDIX B EMPLOYEES LOCKED OUT BY RESPONDENT 4EMPLOYERS B Sheber & Sons E. Brockway W. McCormick C. R Horton T. J. Sheehan R. Chase J. Meneck W. Walker Varden Bros Roofing C. Clink L. Meneconza W. Watson* Conahan R Mercer L J. A. Valoze J Fischer (4) . . J. Joy (4) F. Costa G. Cromer, Jr. L Mitsch J. Morrett Kaiser Boswell Co. C Borwhat D Venditti Bros G. Cromer, Sr. G. Morrison . R Boswell J. R. Armstrong* M Deyeo V. Nacaretta W Boswell H. Hilton J. Dickey R Nespor E Bozek J. Le Veille A. Dupont J. O'Connor Celusnick S G. F. Liccey, Jr. A. Englehart R. Ott . Klump C G. Lucey J. Gaboldon F. Parisi . H Klump F. Salvaggio W. Hanson R. Pracher Oleshak V R. Schafer H. Harootian F. Prokrym . Reichel N R. R. Taylor L. Hathaway S. Prokrym . J Rhodes N. Venditti B. E. Hedden H. Roy R Shaw J Levi Case Co. J. Henry E. Sauter . L. Albrecht R. Insero Sisson C Monahan & Loughlin J C. Anderson N. Irish . Taylor J H. Carter S. Armour F. Kelly . Tompson D F. Chase J. Bacucci R. King . J. Tompson G. Churchill, Jr. A. Barbieri R. La Fleur G Wagner G. Garrow J. Barczewski S. Lazinski White T R. Graver W Belak A Leninger . R. Yevoli W. Green R. Bicowicz R. Liszewski R. Gregory Biscowitz F L Littorin J Hellem . A. Bonk W. Mahoney Skyway Roofing Co. Ingram J. Bordeau M. Mammont C. E. Antemann R. Jarvis R. Bradt D. Martin R Flynn (4) C. Keech E Braungart R. Masula C E. Horton D. Lunt CAPITAL DISTRICT SHEET METAL APPENDIX B (Cont'd.) 723 R. Major P. Cardinali W Simpson W. D. Mitchell C. Mattison A. Decker A. Smith W. O'Connor R. Mattison V. Di Nova E Smith H. Rall S. H Miller B. Donnelly (5) R. Smith W. Reed C. Monahan W. Duplis E. Sponable R. Rososman E. Monahan G. M. Engel E. Steglein T J Ryan, Jr G. Monahan A. Fisher P. Steglein P. Stansfield J Monahan J. Flynn B. Stracher W. Stansfield L. Monahan L. Fox A Winders F. Stuto, Jr. M Monahan F. Fuss E. W Tompkins Co F. Stuto, Sr R. Monahan R. Giroux . R Malone G. Swift R. J. Monahan J. Haack . E. A. Van Acker J. Trembley Naylor R Hammond K F. Voight . E Nims . R Hauf Nicholson Co R. Walters . Peryea T . Hauf W R. Bel J. V. Warren . Peryea Jr W . Henry G W. Bogardus J White , . . R Pudy . Herrewyn J F. Bondy W. J. Winne A. Sherman . R. Hilton 0. Fleig T Yanko E. Stark J. F. Kochank* A. France Robert A. Keasbey Co. W Grant E. Steves A. Krug* . V Jr D Cardella H. Taylor Landau J . . . , G Hornung A P Console* R; Yole . G Martinelli . . A. Lane R Damm James A ckroyd & Sons J McCarthy (5) . J. Lucas (4) Mahoney B. P. Fallon* G P. D Billings E. Mege . A. Farina McCarthy M D. J. Bouchard J Miller . McGiffert D. E. Frye, Jr F A. Brannigan J. A. Milot . D. E. Frye* H Morton J. Brannigan L. Mossey . Oettinger A. Heim W P. Brannigan J. O'Brien (5) . A Paohno M. Holt, Jr. E. Dederick G R. Parker Rice M. Holt, Sr. K C. Edwards J Quackenbush . R. Holt G Ryan* E. Hallett N. Rhodes (5) W. Stonisch R. C. Lavonte J. Harbour T. Rogers H. Weinert D. Morehouse M. Kepp L Russo D. Yager Rene Pailley Hilton J H. Sharer (7) Roger Pailley . G H nds J. Teeling Armstrong Contracting & Supply G. Pisonneault . y J Jordan W. Traynor A. J. Dolan* D. D. Satile * B. Kavanaugh S. Van Alstyne P. Gizzi M Sekanic* H. O. Kehn* D. Van Liew Johns-Manville Sales Corp. A. Spinelli J. Kelly J. Way W. Aganastopolus T. Stanley, Jr. J. Le Cuyer J. White B. Beaudoin C Warren* W. Lupe M. Blache Tri-City Insulation Co E Maloney Joyce & Kramer D. Bodgett C Farnsworth W. Margon W. Blanchard H. Bowers Fitzpatrick* R J L. McCarthy W. F. Bragg* . . T. Caldwell Giddings G G. Mouseau F. Bullis . B. R. Cardella R Sawyer* M. Napalatino G. Carnevale . B. Dallaird M Yanko* M Pourier J. Christie . J Danalovich . T Raco P. Christie F. Di Mura Basic Construction Co. F Radley J. Delahanty J. Di Mura D. Chapman . E Dolezel J Dunn A. Field James Ackroyd & Sons . Frederick A Elario R. Forest D J E. Rowe . D. Gregory . . Forkeutis C. Grabicki N J. Sabinski J. Gregory . J Fournier D. McIntyre W. Sharer G. Harvey Gambacorta J. Miller B J. Smiley J. W. Hausmann . Hamilton D. Palmer W S. Sokack W. Heimburg . Holt* H. Ransford E R F. Thomas F. Herbst, Jr. . . Jr.* L. Reeves Hotaling R A R. Tripp F. Hoffman , . . Johnson R. J. Smith R D. Trujack D. Hogan . Kersten F. Whiting S B. J. Williams W. Kramm . Maddalla Nicholson Co. P W. Williams L. Lape . Markel F. Ascienzo C F. Winters K. Lewis . Markel K. Bryne L C Zanico W. Markowitz . T. May A. Crome C. R. Joyce & Son K Martinez R. J. McCaffery* N. Desco W. Baldwin J. Ryan D. McHugh 0. Devoy R. Bonner W. Schultz W. Mickel T. Eigo 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD PPEN DIX B (Cont'd.) J. Frangello K. Winchell R. Loucks P. Marinello S. Gambino Kilby Bros. E. W. Nieman W. Maurice S. Giordiano J. Beltri L. Sherlock P. McGee H. Jones J Gana J. Miller V. Legg C. S. Kelly McCreary Metals Corp. H. Pryme J. Loughery C. Quido R. Austin W. Scoons F. Martens F Bishop E Sellow Sr McPhail J Glenmont Equipment Co. . D Burns . , . E Sutherland . C Beohlke Jr . . S. Moscato . , . M Cristel K Swann F Mudry B. Lavery . Danahay C . E Thomas . C Martin Jr . . T Myers . , . W Duplis D Usci . P Nezich* J. Poniatowski . P Gorman . D Uwe . D Tremont . . F. Palumbo . W. Gottfried R. Van Ravensway J. Paserra Trojan Hardware Co. D. Haack W. Warburton P. Petramale W. J. Michele H. Haack E. Waver J. Quirk* R. Sheely J. Hanson M. Wiesmaier J. Santora Latham Sheet Metal Corp. D. Hayes Precision Metal Works R. Van Wagner S. Abate (4) R. Jordan A. J. Deno* A. Washington H. L. Dupont* 0. Kassabasian P. G. Lee (7) G. Weis E. Kavanaugh E. Kenton C. Mara J. Willoughby G. Liszewski P. Lyngard A. K. Taylor (4) * These employees were identified, y themselves or another witness, as Note The numeral (4), (5), or (7) following certain names indicates that foremen or assistant Foremen, but no finding of supervisory status is made the employee was laid off on May 4, 5, or 7 All other employees on this list with respect to them were laid off at the close of business on May 3