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Mr. BRIENZA. Our association is a management association in the construction industry in New Jersey. We have offices in Trenton and Newark, and we represent over 400 companies in the industry,

We have all witnessed the recent debates over labor legislation which culminated in the Labor-Management Reporting and Disclosure Act of 1959. This law represents a compromise of different interests expressed in legislation designed to reflect the demands and needs of the American public. Much study and deliberation preceded its enactment. The secondary boycott was considered and treated. Now, this Congress is asked to reconsider this problem in the form of H.R. 9070.

To relax the secondary boycott protection of the present law would be an affront to the American public. It is obvious that the tremendous outpouring of grassroots public reaction in support of labor reform measures strongly opposes the granting of special legislative privileges to unions, as those allowed the building trades unions in H.R. 9070. The wishes of the American public would be subverted if Congress now took a backward step and granted special secondary boycott privileges to the building trades unions who commit over 30 percent of the secondary boycott violations, according to National Labor Relations Board records.

The language of H.R. 9070 is designed to exempt the construction industry from the provisions of section 8(b) (4) (B). Common situs picketing for organizational purposes or otherwise can have a devastating effect in the construction industry. To relax the conditions under which common situs picketing is permissible under present law will invite further labor difficulty and the disruption of commerce. Moreover, there are very significant statutory provisions in many States which create potential common situs problems over which neither contractors, unions, nor employees have any control.

In many States, such as New Jersey and New York, there are separate bid laws. These laws provide that contracts must be awarded to the lowest responsible bidder in different categories; that is, general contractor, electrical, heating and ventilating, structural steel, and the like. Accordingly, on public work, it is possible and frequently happens that nonunion contractors are awarded contracts together with union contractors. In this type of situation, organizational picketing of the nonunion employer at the construction site where other union employers and union employees are engaged, results in cessation of construction. Under existing Federal law, such picketing is lawful under circumstances described below for a limited time, depending upon the exercise of rights by the picketed employer or picketing union granted under section 8(b) (7) (C). The union employers and their employees already have to suffer the consequences of this picketing, unless curtailed under section 8(b) (7) (C) and they should not be subjected to any greater consequences.

Only one typical example of the effects of common situs picketing for organizational purposes need be explored to point up the problem. A specific example is the Hackettstown High School project at Hackettstown, N.J. Under New Jersey law, five prime contractors, who were the lowest responsible bidders in each designated category, were awarded contracts. The general contractor was a nonunion employer. Two other prime contractors (and their subs) were union employers.

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These union employers were awarded almost a million dollars worth of construction on this school. Building trades unions picketed the general contractor in an attempt to organize his employees. This picketing continued for over a year without success. Neither the union employer nor the picketing unions petitioned the NLRB for an election. The union contractors awarded work as prime contractors could not proceed with their work because union craftsmen would not cross the picket line. These employers were forced to surrender their contracts. The job was done entirely by nonunion employers. In the cited example, the union's efforts were unsuccessful and both union employers and union employees suffered.

Building trades unions invariably do not picket nonunion employers when they are working alone or together with other nonunion employers, but only when they are working with union employers and union employees. This clearly demonstrates the secondary boycott nature of this picketing. Often, the only purpose of such picketing is to enmesh neutral employers and neutral employees in a dispute between another primary employer and a striking union to bring pressure to bear to accomplish the ultimate objective.

Consideration of the Denver Building Trades decision is necessary here. Much has been said about this decision prohibiting common situs picketing. The only time it prohibits same is where there is an unlawful objective. These were the specific facts in that case: A general contractor awarded a subcontract to a nonunion electrical subcontractor. The Denver Building & Construction Trades Council, at a meeting called to determine what action it would take on this project, decided to "place a picket on the job stating that the job was unfair.” The general contractor was approached and told that if he did not remove the subcontractor from the job, the job would be picketed. When the general contractor did not acquiesce to the demands of the trades council, picketing was instituted and a sign carried which read:

This job unfair to Denver Building & Construction Trades Council. Note, it did not say the subcontractor was unfair, but that the entire job was unfair. All union workers refused to cross the picket line. Thereafter, the general contractor took the nonunion subcontractor off the job and work was resumed. Then followed the lawsuit by the subcontractor.

In deciding whether or not the secondary boycott provision of the Taft-Hartley Act was violated in this instance, the U.S. Supreme Court said it agreed with the National Labor Relations Board that an object, if not the only object, of this activity was to force the general contractor to cease doing business with the subcontractor. According, the Supreme Court found:

It was an object of the strike to force the general contractor to terminate Gould & Priesner's subcontract.

The decision does not say that, simply because this was common situs picketing, it was unlawful.' In short, the key to the decision was the finding of an unlawful objective.

There is abundant law that recognizes and allows common situs picketing as long as the following conditions are met:

1. Picketing must be limited to times when the primary company's employees are actually present at the common site.

2. Picketing must be limited “to places reasonably close" to the operations of the primary employer's workers.

3. The pickets must show clearly that their dispute is with the primary employer alone.

4. The primary employer's workers must be engaged in the company's normal business (Sailors' Union of the Pacific (Moore Drydock Company), NLRB, 1950, 27 LRRM 1108).

Therefore, it cannot be said that the right to picket a common situs is not available to building trade unions, but, perhaps more realistically, that they are unhappy about being required to conform to the standards under which it is allowed. To relax these requirements is to invite secondary boycott activity in an area that would be most harmful to neutral third parties and infringe upon their rights only because they are engaged in lawful pursuits at the same location. The building construction industry is the largest in the country and the secondary boycott bans of the act should not be lifted from application to such a large segment of our economy, which is most vulnerable to this unlawful activity.

The common situs picketing question cuts through the entire employer-employee relationship in the construction industry, including secondary boycotts, "hot cargo" clauses and subcontractor clauses. The technique in each instance is to insure that the work involved is done not only by union employees but employees of unions within the building trades department of the AFL-CIO. Because this is so, the question here involved is not simply that union building tradesmen protest that they do not wish to be compelled to work side by side with nonunion employees, but rather that employees represented by the building trades unions, under the building trades department, AFI-CIO, do not wish to work side by side with any person, union or otherwise, unless he is represented by a building trades union affiliated with the building trades department, AFL-CIO.

To digress a minute, I think this answers Congressman Griffin's remarks regarding Meany's position in this letter. Naturally the building trades would not work alongside any Negro who was brought in because he is not a member of the AFL-CIO, and because he is a nonunion man. This, of course, means that independent unions or unions not so affiliated, even though within the AFL-CIO, are objectionable. Any concession that would allow such preferential treatment undermines the basic theory of our Federal labor law. Section 7 of the NLRA guarantees to the individual the right to join or not join a union without interference from labor or management.

Moreover, the recent internal feud which erupted in Miami, between the industrial union department of the AFL-CIO, and the building trades department of the AFL-CIO, portends serious future problems in the struggle between craft unions and industrial unions. If this becomes an open clash between the contending unions, either side could make frequent use of common situs picketing or strikes to the detriment of innocent employers, employees and the public. The following language of the proposed bill should be noted :

and there is a labor dispute, not unlawful under this act or in violation of an existing collective bargaining contract

This provision is designed to elevate the collective bargaining contract to a superior position than the public policy otherwise expressed in the Federal labor law. It is a method to circumvent it, and would mean a return to pre-Taft-Hartley days. No substitute for the public policy presently expressed in our Federal labor law should be allowed in this manner.

Where “hot cargo" clauses and subcontractor clauses exist, unions have a right to sue for damages when these provisions are breached. Resort to the picket line should not be allowed because it involves the rights of neutrals. They can be adversely affected where they invariably have had no part in framing the circumstances at which the picketing is aimed. Everybody should be held accountable and responsible for their actions and contract commitments. By the same token, those who have not violated any commitments, nor created a condition in violation of a contract, should not be subjected to injury by means of the picket line.

For the above reasons, the Building Contractors Association of
New Jersey is opposed to H.R. 9070.

Thank you.
Mr. PERKINS. Mr. Wier.

Mr. WIER. I was just going to ask him, are you representing all of the contractors, general and subcontractors, in New Jersey ?

Mr. BRIENZA. Our association is comprised of over 400 members, of which 150 are general contractor members, and 250 are associate members, including some subcontractors and suppliers.

Mr. WIER. What percentage of your contractors, both sub and general, are operating under the union shop?

Mr. BRIENZA. Every one of them.
Mr. WIER. That is all.
Mr. PERKINS. Mr. Griffin.

Mr. GRIFFIN. I think your testimony here is quite helpful. I am particularly interested in the point you raise concerning the possible implications of the phrase, referring to the collective bargaining contract. That is very interesting, I think, and particularly in view of the method of enforcement of hot cargo clauses and the subcontractor clauses which are enforced through a right to sue for damages. That is a point which should be very seriously considered. Do you have any comment on the question I asked the previous witness: The argument is made that the Denver rule is discriminatory against the building and construction unions because situs picketing is permitted with respect to a large industrial plant where various unions represent different segments of the workers; if a dispute arises as far as one union is concerned, it is argued that the union can picket and close the whole plant down.

Mr. BRIENZA. As you know, Congressman, in the construction industry, there is a multiple employee relationship while in the industrial situation in practically every case it is a single employer.

Mr. GRIFFIN. I don't have any more questions.

Mr. PERKINS. Do either one of you gentlemen care to comment or supplement his statement in any way?

Mr. Casey. Yes. In reference to this point, this approach denies the actual realities that we work with in construction. There are 19 different trades, and there are 19 different bargaining channels. The general contractor will operate as a rule with maybe four at a maximum. He has nothing to say about the electrical negotiations, and the eventual agreement, nor with the plumber, nor with several others. The plant operator deals as the single employer taking care of all the contracts that he has to work with. We are stuck. We have nothing to say about many of the disputes that take place in the construction industry. If it were otherwise, we would say the analogy is correct. But the analogy denies reality. It does not represent what actually exists in the construction field, because of this vast split in the bargaining techniques and the bargaining arrangement.

Mr. Griffin. The matter of control, you would say, should be quite important as far as the distinction you are trying to make?

Nr. Casey. What would you mean by control?

Mr. Griffin. You made the same point. Perhaps you did not use the word “control.” In an industrial plant, the single employer negotiates the contracts even though there may be several unions, and he has control, so to speak, of the situation in terms of being able to negotiate the contract provisions which may develop into a dispute.

Mr. CASEY. That is correct.

Mr. GRIFFIN. Whereas in the typical construction situation, would you say that the general contractor does not have that kind of control?

Mr. Casey. That is correct. This is as true across the board as you will ever find it. We don't have a thing to say about many areas, the plumbers, electricians, sheet metal, painters. The general contractor is told, as the preceding witness said, what are you doing? Get out.

Mr. Wier. I think you leave yourself wide open on that answer for the simple reason that the general contractor holds complete authority over the job. Essentially the lowest bidders on the subcontracts, he has a choice on bidders. I think I brought that up yesterday. You already admitted here that all of your contractors are union that you represent here in New Jersey. I don't know whether a nonunion contractor could come into the picture. You must have some nonunion contractors in New Jersey.

Mr. GRIFFIN. This bill would not apply only to the situation of a nonunion contractor. Suppose that some dispute develops over a contract interpretation or any minor matter, and suppose all the subcontractors are union, under this bill the union having a dispute with one subcontractor could picket the entire site and close the whole job down, even though the union might be 100 percent wrong in that particular case.

Mr. WIER. I realize that I am just counteracting the statement they made that the general contractor is engaged with five trades. He starts with the laborers, the hoisting engineers, to dig the hole. "Then he hires the cement men to lay the foundation, and then the carpenters come in. He lets the bids. We are having that fight now here in Congress or have had over Government work, and that is the subcontractors will have their right of bidding on these jobs rather than turning the whole job of a Government operation or project over to the general contractor and let him make that selection. We have had that bill around here for 4 years now. After all, our unions are consulted about a contractor coming from New Jersey. We had an experience from one of your roofing firms in Minneapolis, if you heard

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