2. The effect of the certification without election procedure in S. 74 on the settlement of jurisdictional disputes.

3. The 7-day "grace" period proposed in section 603 (a) of S. 505.

Therefore follows a discussion of each of these three subjects.

1. History of Collective Bargaining Relationship.-Section 506(b) of S. 744 authorizes a certification without election procedure as a means of meeti the "prehire agreement" problem in the building and construction industry. The procedure is limited by the language in section 506(b), which reads as follows:

"That the preceding proviso shall not apply where there is no history of a collective bargaining relationship between the petitioning employer and labor organization prior to the current agreement * * *."

The question is, therefore, presented as to whether an employer who has not previously been part of an associationwide bargaining unit becomes a part thereof by the act of stating his intention to comply with the existing associationwide agreement. The question arises with respect to new employers in an area.

In the leading case of Associated Shoe Industries, etc. (81 NLRB 224 (1949) the Board carefully considered the matter of including nonmembers in assoc.2tionwide units and established the general rule that the determinative criterion is the presence or absence of participation in the joint bargaining. Customary adoption on the part of the nonmember of the association agreement does not warrant its inclusion in the associationwide unit. The Board said:

"Reduced to its simplest terms, the main argument here presented against advance tanning is that, where an independent employer customarily adopts as its own the collective bargaining contracts negotiated by an employer associa tion, the employees of the independent employer and those of members of the association should be included in the same unit. We have repeatedly rejected this argument because in our opinion in these cases the employees of an inde pendent employer may appropriately constitute a separate unit or be included in a multiple-employer unit. Some evidence of true collective bargaining on a multiple-employer basis by such an employer is therefore ordinarily necessary to warrant the inclusion of its employees in the broader unit. Such evidence appears when the employer participates personally with other employers in joint negotiations, or when it delegates to a joint bargaining representative authority to conduct negotiations on its behalf. Only by such participation does an employer undertake the obligations and responsibilities of joint bargaining, and only under such circumstances can it be said that its employees have been bargained for jointly with the employees of other employers upon a multiple employer basis.

"The majority opinion in no way implies, as intimated in the dissent, tha membership in an association is the controlling factor in determining the appro priateness of a multiple-employer unit. As stated above, the essential element, in our opinion, for establishing a multiple-employer unit is participation by a group of employers, whether members or nonmembers of an association, either personally or through an authorized representative, in joint bargaining negotiations."

The Board has ruled that new members of an association who, as a condition of membership, agreed to be bound by association contracts satisfy the req.rement of participation in the joint bargaining (Denver Heating, etc. Contractors. 99 NLRB 251 (1952)). There the Board said:

"So far as the scope of the various units is concerned, the record as a whole satisfies us that those members of the associations who have delegated to the associations the authority to negotiate on their behalf" have clearly indicated their intent to be bound by group rather than individual action."

But the mere fact that an employer adopts the association agreement is not enough to warrant his inclusion in the associationwide unit. Thus, in Jewish Bakery Assn. (100 NLRB 1245 (1952)), the Board stated:

"It is established Board doctrine that participation for a substantial period of time in joint bargaining negotiations and the uniform adoption of the agree ments resulting from such negotiations indicate a desire on the part of the participants to be bound by joint, rather than individual, action and warrants

12 "This includes new members, who as a condition of membership, agree to be bound by association contracts. On the other hand, mere membership in the association or the mere adoption of contracts negotiated by the association is insufficient."

lishment of a multiemployer unit. However, the Board has held that adoption by an employer of contracts negotiated by a multiemployer insufficient to require the inclusion of his employees in the multiemit."

en the fact that the nonmembers are given a voice in ratification of the n agreement does not warrant their inclusion in the association unit. d stated in Highway Transport Assn., etc. (116 NLRB 1718 (1956)): remains for consideration the unit placement of nonmember employers Dany area who customarily adopt the association contract after it has >tiated. Although invited to meetings where they might vote on the n of contracts, these employers do not authorize the association to or them, and the record does not show that they participate in joint g. In these circumstances, and in accord with Board precedent, we absent delegation of bargaining authority to the association, or parin joint negotiations, mere adoption of association contracts by eminsufficient to warrant their inclusion in an associationwide unit. ly, we exclude from the unit employees of employers who adopt assontracts but do not participate in joint bargaining or authorize the a to bargain for them."

more, advance agreement on the part of the nonmember to be bound ociationwide negotiations does not warrant such nonmember's inclu› associationwide unit. In Pacific Metals Co. (91 NLRB 696 (1959)), stated:

es the fact that the nonmember customarily adopts the standard conself provide a sufficient basis for the inclusion of their employees in a those of the other employers. It is true that in 1948 and 1949 the rs individually agreed in advance to abide by the results of collectivenegotiations between the association and the intervenor. But this nced their individual intent to continue, as they had in the past, to contract. As the agreement was between the individual nonmember ervenor, rather than the association, it is not evidence of participation argaining as a group, such as would warrant their inclusion in a ployer unit."

ar effect is The Plumbing Contractors Assn. of Baltimore (93 NLRB )), where the Board said:

we find merit in the petitioner's contention that jurisdiction should over McCann as part of the association. Although McCann is not a the association, it customarily adheres to the terms of the collectiveagreements negotiated between the petitioner and the association, in advance to adhere to the terms of such agreements, would join tion if asked, and would prefer to bargain through the association. tion, however, will not act as the bargaining agent of any employer ot a member of the association, irrespective of such nonmember's is adoption of the terms of the association agreements. As the Board y reiterated, the basic requirement for inclusion in a multiemployer ence for basing jurisdiction upon the totality of the operations of all ers in the unit, is "participation in joint bargaining as a group." It ient that an employer customarily adopts the terms of the agreement y the multiemployer group, or agrees in advance to be bound thereby. has not participated in group bargaining through the association, se our jurisdictional findings as to McCann on McCann's individual rather than on the operations of the association. Accordingly, we s the petition as to McCann."

o Metropolitan Home Builders Assn. (119 NLRB 1184 (1957)), the

, the Board has consistently held that an essential basis for ny a multiemployer unit is appropriate is that the individual emquivocally manifest a desire to be bound in future collective barroup rather than individual action."

t statement read in conjunction with the earlier Associated Shoe it plain that a mere statement of intention to comply with condished by the association agreement cannot suffice to place the nonhe established associationwide unit.

fore, submitted that the answer to the question stated above is in The Denver Heating case, supra, indicates however that a new joining the association and agreeing to be bound by the joint would be a part of the unit already in existence.

In the situation where there is no established association in the area and the labor organization negotiates with the individual employers, it would seem that the history of bargaining has resulted in single employer units which would furnish no basis for a claim of history on the part of the new employer. 2. The effect of the certification without election procedure in S. 748 on the settlement of jurisdictional disputes.-There appears to be general agreement that the Joint Board for the Settlement of Jurisdictional Disputes has performed an excellent service for the building and construction industry and public. The widespread use of the joint board by management and labor is further evidence of its utility. Legislative proposals which have the effect of aiding the Joint board in the performance of its functions would appear to be desirable. Legislative proposals which would have the opposite effect would appear to be undesirable.

It is our view that the proposals in S. 748 to establish a certification without election procedure would have an adverse effect on the joint board. The principal reason for this position is the language of section_8(b)(4) (D) of the act which makes it an unfair labor practice for a labor organization to engage in concerted activity having as an object:

"(D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, er class rather than to employees in another labor organization or in another trade. craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work *** [Italic supplied.]

It is apparent from this section of the act that the language in a certification describing the unit to which it is applicable may prove of decisive effect in establishing the legality or illegality of labor activity. As stated in General Box Company (82 NLRB 678-681 (1949)):

"***a Board certification is a defense in certain situations where a respondent union is charged with engaging in a strike or other concerted activity in support of a jurisdictional dispute within the ambit of section 8(b) (4) (D) of the act."

Section 10(k) of the act authorizes and directs the National Labor Relations Board to hear and determine the jurisdictional dispute out of which the particular unfair labor practice has arisen. It is apparent that in 10(k) proceedings the certification may be an important factor in determining the particular union which will receive the award of the Board. In Amalgamated Meat Cutters and Safeway Stores (101 NLRB 181 (1952)), the Board decided a section 10(k) proceeding involving a jurisdictional dispute between the Meat Cutters Union and the Food Clerks Union over prepackaging of luncheon meats. The Meat Cutters Union advanced in support of its claim a number of considerations, including the language of the unit description in its certification. This description included

"All fabricators, cutters, wrappers, sellers, handlers, and merchandisers of meat *** including *** individuals working in meat cutters' departments who are engaged in handling and selling meats * * *."

The Board ruled that the handling and display of prepackaged luncheon meats is included in the Meat Department Employees Unit presently represented by the Meat Cutters Union and not in the Food Clerks Unit. It is of interest that the Board was able to make this determination of dispute without running into the closed shop provisions of the act. (See also Florence Pipe Foundry & Machine Co., 112 NLRB 960 (1955), where the Board held that "*** employees engaged in the work of pattern mounting in the company's pattern shop are within the unit description of the Pattern Makers' certification and outside the production and maintenance unit which the Steelworkers is entitled to represent.")

With these decisions on the books, it may be expected that great controversy will develop in the certification without election procedure among competing unions so that these proceedings will develop litigious issues involving the de scription of the unit. Each union may seek to secure that description which will advantage it in future jurisdictional disputes.

The availability of the certification device may result in noncompliance by parties to jurisdictional dispute determinations of the joint board. This may result not only from the language of the sections of the act which have beeB quoted above but also from the language of section 8(b) (4) (C) of the act. This section makes it an unfair labor practice for labor organization to engage in concerted activity which has as an object, “(C) forcing or requiring any em

wer to recognize or bargain with a particular labor organization as the resentative of his employees if another labor organization has been cerd as the representative of such employees under the provisions of sec9. ***"

Graham v. Local No. 2247, United Brotherhood of Carpenters and Joiners America (AFL-CIO) (Alaska Dist. Ct. Third Div., No. A-14, 444 (Jan. 4, 8), 34 L.C., 71,289), a jurisdictional dispute arose between the Painters on and the Carpenters Union with respect to the installation of marlite and istical tile. The joint board decided the dispute in favor of the Carpenters on. The employer refused to comply with the decision and concerted labor vity resulted from such refusal. The National Labor Relations Board inuted a proceeding against the union which had won the award of the joint rd. This proceeding was based on language of section 8(b) (4) (C) and, articular, a certification of the Painters Union which described the unit as ows: "All employees engaged in the installation of soft tile, acoustical marlite, linoleum, venetian blinds and like materials and glaziers, excluding other employees." The Federal District Court issued an injunction against carpenters union.

he National Labor Relations Board issued a similar decision in the main › before it, holding that the Union had violated section 8(b) (4) (C) by aging in a strike for recognition at a time when another union was the ified bargaining representative of the employees (42 LRRM, 1100 (May 1958)).

t the present time the labor unions in the building and construction industry e infrequent use of the certification procedure because of its lack of feasiy in most cases through the unsuitability of elections. The adoption of a ification without election procedure, however, would remove the difficulties, it could be anticipated that numerous proceeding for such certifications ld be undertaken for the purpose of securing jurisdictional advantages. If 1 widespread utilization of certification procedures is undertaken, it would n clear tht the Joint Board for Jurisdictional Disputes would not be able to tion.

The 7-day "grace" period proposed in section 603 (a) of S. 505.-The basic nomic fact supporting the proposal to reduce the "grace" period from 30 days 7 days in the building and construction industry is the intermittent nature he employment of any particular employee with a particular employer. As ed in Senate Report No. 1211, 83d Congress, 2d session (Mr. Smith, of New sey, from the Committee on Labor and Public Welfare):

Although the average length of individual employment with a single employer all such industries is unknown, it is universally admitted that a large numof employees in certain industries [such as the building and construction stry] average less than 30 days of continuous employment with a single loyer. As a result, the provision of the Taft-Hartley Act which permits loyers and unions to enter into collective-bargaining agreements requiring bership in the union within 30 days is utterly ineffective with respect to employees. This means that the unions which represent them, although subject to all the sanctions which flow from a violation of the Taft-Hartley are, nevertheless, denied one of the substantial benefits which the act confers abor unions generally" (at p. 14).

his particular proposal in S. 505 has been approved in three separate reports he Senate Labor Committee. In addition to the above report, which is dated il 15, 1954, there are the reports of May 5, 1952 (82d Cong., 2d sess., Rept. 1509), and of June 10, 1958 (85th Cong., 2d sess., Rept. No. 1684). It was specific subject of recommendation by President Eisenhower in his message anuary 11, 1954, and it has twice been passed by the Senate (S. 1973, May 952, and S. 3974, June 17, 1958).

should be noted that the proposal will not reinstate the closed shop, and it be available only if the employer agrees with a union which meets all other icable qualifications under the act.

Sincerely yours,

RICHARD J. GRAY, President.

Ir. ROONEY. Mr. Chairman, if I might, I want to thank the comtee for enabling us to appear and present our recommendations. Ve would like to have our statement included as part of the record hese proceedings.

Also, we would like to have the opportunity to file supplementary statements on any other testimony that might be furnished later to this committee relating to the construction industry.

Mr. GRIFFIN. Mr. Chairman, I had one brief question.

Chairman BARDEN. Without objection, your statement will be included in the record.

(The statement referred to follows:)

STATEMENT BY FRANK J. ROONEY, CHAIRMAN OF THE LABOR COMMITTEE OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, ACCOMPANIED BY WILLIAM E. DUNN, ASSISTANT EXECUTIVE DIRECTOR

Mr. Chairman and members of the committee, my name is Frank J. Rooney, of Miami, Fla. I appear before you on behalf of the Association General Contractors of America, a national trade association of over 7,000 leading general contractors in the Nation. At present I am chairman of the AGC Labor Com mittee, and it has been my honor to be president of this association. Our members are located in every State in the Union and annually perform the majority of the Nation's contract construction.

We appreciate the opportunity to appear and testify on pending labor reform legislation as well as some proposed changes in the language of the Taft-Hartley Act, both of which have a direct bearing on the activities of the construction industry.

Before commenting on specific provisions, I would like to present the association's recommendations on labor-management legislation as adopted in 1958 and reaffirmed at our 1959 annual convention.

The association endorses the principles contained in proposed labor legislation which would:

(1) Outlaw completely all recognition and organization picketing. (2) Guarantee democracy in unions.

(3) Require unions to file financial reports with an appropriate agency other than the U.S. Labor Department and make available such financial reports for public inspection.

(4) Guarantee the right of secret elections and open union records and internal rules for inspection by the membership.

(5) Permit suit to be brought by union members against union officials in Federal or State courts.

(6) Require employers to report all financial dealings with unions, directly or through a third party, except as authorized by law.

(7) Remove the tax exemption of labor organizations when they engage in political activities.

(8) Specifically permit the payment of employer contributions to apprentice training trust funds in the building and construction industry.

(9) Outlaw all strikes for new demands during the life of a labor agreement. (10) Remove the no man's land between State and Federal jurisdiction over labor matters and give both State and Federal authorities concurrent jurisdiction to prevent illegal labor practices.

The association further recommends that Congress:

(11) Amend the Federal antitrust laws to restore their application to unions, and

(12) Enact Federal legislation in support of the principle that no one should be deprived of employment because of membership or nonmembership in a labor organization, and

(13) Enact legislation outlawing all secondary boycotts and closing the present loopholes in the secondary boycott provisions in the Taft-Hartley law. The association emphatically objects to all proposals to relax existing secondary boycott provisions in the construction industry.

Of the numerous labor-reform measures pending before this committee, we believe that the provisions of the Barden bill (H.R. 4473) or the McClellan bill (S. 1137) more nearly fulfill the general recommendations of our association in this field.

We note that both the Barden bill and the McClellan bill stick to the subject of labor-reform legislation and do not include any amendments to the TaftHartley Act. A look at our recommendations in the field of labor-management legislation will show that we have recommended strengthening the Taft-Hartley