Carpenters, Local 112

National Labor Relations Board - Board Decisions

May 12, 1975

217 N.L.R.B. 902 (N.L.R.B. 1975)

902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Brotherhood of Carpenters & Joiners of
America, Local 112, AFL-CIO and its agent , South-
west Building Trades Council of Montana,
AFL-CIO ' andSummit Valley Industries , Inc. and
Jack McLeod & Associates , Inc. and Chamber of
Commerce of the United States of America , for and
on behalf of its member Boise Cascade Corporation
and all other similarly situated members.2 Cases
19-CC-588, 19-CD-212, 19-CC-591, 19-CC- 604,
19-CC-604-2, and 19-CE-21
May 12, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, KENNEDY, AND PENELLO
On May 9, 1974, Administrative Law Judge Louis S.
Penfield issued the attached Decision in this proceed-
ing. Thereafter, exceptions and supporting briefs were
filed by Respondent Carpenters, Respondent Council,
Summit Valley Industries, Inc., Jack McLeod & As-
sociates, Inc., The Chamber of Commerce, and the
General Counsel. The Chamber of Commerce also filed
a supplemental brief and Air Conditioning and Refrig-
eration Institute, et a1.,3 filed an amicus curiae brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs4 and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge and
to adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
I Hereinafter referred to as Respondent Carpenters and Respondent
Council, respectively.
2 Hereinafter referred to as the Chamber of Commerce
3 American Boiler Manufacturers Association, Air Moving and Condi-
tioning Association, Inc , Architectural Woodwork Institute, American
Consulting Engineers Council, National Electrical Manufacturers Associa-
tion, National Society of Professional Engineers, and National Woodwork
Manufacturers Association
4 The Chamber of Commerce has requested oral argument This request
is hereby denied as the record, the exceptions, and the briefs adequately
present the issues and positions of the parties
Respondent Carpenters motion requesting the Board to reject the Cham-
ber of Commerce's supplemental brief is hereby denied as lacking in ment
5 We do not share our dissenting colleague's evaluation of the record here
as establishing that a decision to purchase a modular home is "never made
or even participated in" by any employer of Respondent's members, and
that art XXII "could have no other purpose" except to bar finished modular
homes completely from the Butte market. We are aware of nothing in the
record which proves, for example, that a carpentry contractor could or
might never decide to purchase and erect a modular home for resale on his
own account
Moreover, contrary to our dissenting colleague, in determining the valid-
ity of a clause under Sec 8(e), the Board has never considered extrinsic
evidence as to the manner in which the clause has been subsequently en-
forced where as here the clause is clearly lawful on its face.
the Administrative Law Judge and hereby orders that
Respondent United Brotherhood of Carpenters & Join-
ers of America , Local 112 , AFL-CIO, Butte, Montana,
its officers , agents, and representatives , shall take the
action set forth in the said recommended Order , except
that the attached notice is substituted for that of the
Administrative Law Judge.
MEMBER KENNEDY, concurring in part and dissenting in
part:
I concur in my colleagues' findings that Respondent
Carpenters has engaged in unfair labor practices in
violation of Section 8(b)(4)(i), (ii)(B) and (D) of the
Act. I disagree with their dismissal of the 8(e) and
8(b)(4)(i) and (ii)(A) complaint allegations against Re-
spondent Carpenters.'
The Administrative Law Judge found, inter alia, that
certain actions taken by the Union to enforce the provi-
sions of article XXII of its collective-bargaining agree-
ments with Butte, Montana, building contractors,'
threatened, coerced, and restrained contractors Jovick,
Perusich, and Lutey-and unlawfully induced and en-
couraged their employees-with an object of forcing or
requiring them to cease handling and otherwise per-
forming work upon fully finished modular homes
manufactured by Summit Valley Industries, Inc., and
Boise Cascade Corporation. I agree with this finding.
However, I would further find that the Union violated
Section 8(e) of the Act by "entering into" article XXII,
and violated Section 8(b)(4)(i) and (ii)(A) by threaten-
ing, coercing, and restraining the aforementioned con-
tractors with the object of forcing or requiring them to
"enter into" article XXII.
Fully finished modular homes of the type manufac-
tured by Summit and Boise come from their factories
to building sites in the Butte area as substantially fin-
ished products with most of the work that carpenters
normally perform on conventional stick-built houses
already completed. However, some carpentry work is
still required at the sites-for construction of the foun-
dations, "stitching work" on the modular units, hang-
ing of some inside doors, and building of stoops, stairs,
and railings. To perform this work, local building con-
tractors are engaged by either the home buyer or Boi-
se's franchised dealer in Butte, Jack McLeod & Associ-
ates. With respect to the modular homes directly
involved herein, the foundation and finishing work was
6 Also unlike my colleagues, I would not affirm the Administrative Law
Judge's rulings wherein he rejected certain expert testimony and exhibits
proffered by Charging Party Chamber of Commerce which dealt with eco-
nomic factors relating to the home construction industry on a national basis
7 Art XXII is purported by the Union to be a work preservation agree-
ment. In pertinent part, it sets forth specific aspects of carpentry work which
signatory contractors must have performed only at construction sites. Most
of the work so specified is performed on fully finished modular homes at the
factory where they are manufactured The full text of art. XXII appears in
the attached Decision of the Administrative Law Judge
217 NLRB No. 129
CARPENTERS , LOCAL 112 -
given to contractors Jovick, Perusich, and Lutey, all of
whom employed members of Respondent Carpenters
and were bound to contracts containing article
XXII.8
When the contractors commenced their work on the
modular homes or on the foundations therefor, the
Union asserted that they were violating article XXII
and proceeded to apply pressures to both the contrac-
tors and the contractors ' employees which effectively
terminated further work on modular homes in the
Butte area . The Administrative Law Judge , relying on
the reasoning set forth both by the Board and the court
in the Koch case,' found that the pressured contrac-
tors were neutrals as they were incapable of acceding
to the Union 's work-assignment demands and, there-
fore , concluded that the actions taken against them and
their employees had a secondary objective and were
violative of Section 8(b)(4)(i) and (ii)(B).
However, the Administrative Law Judge then pro-
ceeded to hold that article XXII, itself , did not have a
proscribed object and, accordingly , the conduct of Re-
spondent Carpenters in "entering into" it-and pres-
suring contractors to "enter into" it-was not violative
of the Act. In reaching this conclusion, the Administra-
tive Law Judge relied on his preliminary finding that
when initiating, entering into, and maintaining article
XXII the Union was seeking only to preserve work
historically and traditionally performed by its carpen-
ter members against the advent of modular housing in
the Butte area. -
In so finding , the Administrative Law Judge relied
on the decision of a panel of this Board in United
Brotherhood of Carpenters & Joiners ofAmerica, Local
# 112, AFL-CIO (Silver Bow Employers' Association),
200 NLRB 205 (1972), in which I did not participate.
In that decision the Board dismissed the allegation that
the initial entry into article XXII violated Section 8(e).
That decision is not persuasive in view of the evidence
of unlawful 'intent revealed by the subsequent enforce-
ment efforts explicated on the record here.10 The
s All, or almost all, Butte area contractors performing carpentry work are
bound to art XXII, either through their membership in the Silver Bow
Employers' Association or the Butte Contractors' Association-which or-
ganizations jointly negotiated identical contracts with Respondent
Carpenters-or by execution of individual compliance agreements. Contrac-
tors Perusich and Lutey are members of the Butte Contractors ' Association,
while Jovick was an individual signatory.
9 Local Union No 438, UnitedAssociation ofJourneymen andApprentices
of the Plumbing and Pipe Fitting Industry of the United States and Canada,
AFL-CIO (George Koch Sons, Inc.), 201 NLRB 59, enfd sub nom. George
Koch Sons, Inc. v N.L R B., 490 F.2d 323 (C A 4, 1973)
10 The scope and meaning of art XXII can be ascertained only from an
examination of the circumstances of the industry and the labor relations of
the parties who negotiated the contract Without that context , the clause
per se is merely a list of job assignments which does not on its face answer
the questions which the Supreme Court has said must be answered to deter-
mine the legality of the contract National Woodwork Manufacturers As-
sociation v NL.R.B, 386 U S . 612 (1967) Whether the clause meets the
standard of legitimate work preservation or is designed to reach elsewhere
903
Board has clearly held that postentry conduct does
reveal initial secondary purpose in the demand for and
entry into such an agreement. General Teamsters,
Chauffeurs, Warehousemen and Helpers, Local 982,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers ofAmerica (Associated In-
dependent Owner-Operators, Inc.), 181 NLRB 515
(1970). See Joint Council of Teamsters No. 42, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Merle Riphagen),
212 NLRB 50 (1974). It is significant that Respondent
Carpenters conceived article XXII as a means of avoid-
ing the Board's earlier decision that its actions against
the performance of work on these modular houses were
unlawful. Southwest Building Trades Council of Mon-
tana (John A. Bender), 188 NLRB 224 (1971). There-
fore, in my view, the Administrative Law Judge 's anal-
ysis is inadequate and should not be adopted. The
General Counsel is correct on the facts and the law in
his assertion that the extrinsic evidence adduced on this
record proves that Respondent Carpenters understood
and intended article XXII to encompass secondary ob-
jectives at the time it was entered into.
When evaluated in the context of record evidence
pertaining to the home construction industry in Butte
and the conduct of Respondent Carpenters, it is clear
that the sole motivation" for initiating, "entering
into," 12 maintaining, and enforcing article XXII was
to completely bar fully finished modular homes from
the Butte housing market. It could have no other pur-
pose, as the Union conceded that it had experienced no
difficulties with the contractors relating to the use of
prefabricated or other offsite constructed components
in the conventional stick-built construction.13 Indeed,
as the Board found in United Brotherhood of Carpenters
& Joiners of America Local 112, AFL-CIO (Summit
Valley Industries, Inc.), 202 NLRB 974 -(1973), Re-
spondent Carpenters' pressure against Summit Valley
would cease if Respondent achieved jurisdiction of the
in-plant work of assembling these modular houses,
is a question that can only be answered by an analysis of its context which
includes the evidence of its enforcement history
i i My colleagues' reliance on Respondent's self-serving testimony that it
conceived of and enforced art XXII in "good faith" is ill founded The law
will not recognize such disclaimers , but rather presumes that one intends the
foreseeable consequences of misconduct See my dissent in Los Angeles
Building and Construction Trades Council (B & J Instrument Company),
214 NLRB No 86 (1974)
i2 The actual execution of the contracts containing art XXII predated the
Act's 10(b) period herein. But, as the Administrative Law Judge correctly
found, a contract may be viewed-at least for 10(b) purposes-as reaffirmed
or "reentered into" when its terms are acquiesced in or enforced by the
parties. Here, within the 10(b) period, the Union applied enforcement pres-
sure, the employing contractors acquiesced , and such acquiescence con-
stituted a new "entering into."
13 The testimony of James Cadigan, Respondent Carpenters business
agent, confirms that-except for modular homes-the Union had no prob-
lems with its contractors concerning the preservation of onsite construction
jobs.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which work was already being done by employees
represented by another labor organization. In that pro-
ceeding, Respondent conceded that it was attempting
to apply article XXII. Respondent's object is to acquire
work being performed by other employees not repre-
sented by it. Such an object is secondary and violative
of Section 8(e). National Woodwork Manufacturers As-
sociation v. N.L.R.B., 386 U.S. 612.
Further, as the decision to purchase a fully finished
modular home is made by the home buyer or, in certain
cases, by the modular home dealer-and is never made,
or-even participated in, by contractors employing the
Union's members-Respondent Carpenters knew, or
should reasonably have known, that article XXII
would be enforced exclusively in situations where the
signatory contractors would be unoffending neutrals
and only secondary consequences would flow there-
from.
With regard to this factor, the Circuit Court of Ap-
peals for the Ninth Circuit recently observed as follows:
Whether an agreement or its maintenance con-
stitutes a secondary boycott must be determined
by reference to "all the surrounding circum-
stances." National Woodwork, supra at 644. An
important factor in this determination is the
"right-to-control" test which provides that "if an
employer is not legally empowered to meet his
employees' demand, then they cannot lawfully
strike him for his failure to accede." George Koch
Sons, Inc. v. N.L.R.B., 490 F.2d 323, 326 (4th Cir.
1973).
[The Union] argues that its objective here was
work preservation and that National Woodwork
authorizes any union activity with that objective.
We believe National Woodwork must be limited by
the right-to-control doctrine. A union's right to
enforce a work preservation clause against an em-
ployer may extend only to work which is his to
assign. When it is applied to work beyond the
employer's power to give, a work preservation
clause necessarily embodies a prohibited second-
ary objective. l4
Accordingly, as the signatory building contractors
herein were merely secondary employers with no
power to alter the nature of the work performed on the
modular homes, it becomes clear that the Union's true
objective was, through coercion of the contractors, to
put pressure on modular home buyers and dealers to
cease doing business with Summit and Boise and,
thereby, to pressure Summit and Boise to either alter
14 Associated General Contractors of California, Inc. v. NLR B, 88
LRRM 3542, 3544, 3545 (C A 9, 1975), reversing 207 NLRB 698 (1973)
the nature of their products or cease manufacturing
them.
Therefore, as the record evidence shows that article
XXII was, and is, necessarily aimed at contractors who
cannot control the type of housing on which they are
asked to work, it necessarily becomes secondary and
unlawful under Section 8(e), and the conduct engaged
in to obtain the clause and compliance therewith (a new
"entering -into") did and does violate Section 8(b)(4)(i)
and (ii)(A).
Wholly apart from considerations concerning the
contractors' known inability to secure the disputed
work for the Union's members, I would also find a
violation of Section 8(e) on the ground that the work
the Union sought to preserve by "entering into" article
XXII is not work which its members have historically
and traditionally performed. For, I regard fully fin-
ished modular homes as being technological innova-
tions. Their production on an assembly-line operation
in an industrial plant is significantly different in nature
from conventional craft operation "stick-built" homes.
From this, I conclude that the in-factory work per-
formed on them cannot be considered in the same cate-
gory as the jobsite work which carpenters have histori-
cally and traditionally performed on- conventional
housing.15 Moreover, from the record evidence herein,
it appears that the relationship between successful en-
forcement of article XXII and the securing of employ-
ment opportunities for jobsite carpenters is, at best,
remote. 16
Therefore, I conclude that the objective of article
XXII was to acquire, rather than preserve, work for the
employees represented by Respondent Carpenters. Ac-
cordingly, I would, on this additional basis, find that
article XXII, its entry into, maintenance , and enforce-
ment, is violative of Section 8(e) and 8(b)(4)(i) and
(ii)(A) of the Act.
15 See my dissents in Southern California Pipe Trades District Council No.
16 of the United Association (Associated General Contractors of
California), 207 NLRB 698 (1973); Southern California Pipe Trades District
Council No. 16 (Kimstock Division, Tndair Industries), 207 NLRB 711
(1973)
16 The record establishes that there is a substantial price differential
between fully finished modular homes and conventional stick-built housing.
Testimony indicated that the former sell in the $18,000-$25,000 price
range, while the latter are almost always priced in excess of $25,000 While
modular houses are generally smaller in area than the conventional ones, the
evidence also shows that, even in terms of cost per square foot, the modular
houses maintain a cost advantage to the buyer. As a result of their differing
price ranges, it appears that the conventional homes (on which carpenters
have traditionally performed art. XXII work) and modular homes do not
directly compete with each other in the same housing market.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
CARPENTERS, LOCAL 112
WE WILL NOT induce or encourage any employee
to refuse to work on, handle, or transport any
modular house, or threaten or coerce any person,
including Butte area contractors, or any other em-
ployer engaged in some aspect of constructing,
transporting, or handling modular houses, where
in either case an object of such pressures is to force
or require the Butte area contractors, or any other
person, to cease working on a modular house at a
jobsite, either altogether, or unless and until such
house be brought to the jobsite in a condition
which conforms to the requirements of article
XXII of the contract; or where an object is to force
or require manufacturers of modular houses to
cease bringing such houses into the Butte area
altogether, or to change their mode of operation so
that such houses are brought to Butte area jobsites
in a condition that conforms to article XXII of the
contract.
WE WILL comply with the Board's Direction and
Determination of Dispute on the work assignment
issue , and will not picket or bring economic pres-
sure against Summit Valley, or any other person,
where an object is to force or require Summit Val-
ley to assign carpentry work, whether in its plant
or at a jobsite, to employees who are members of
our union rather than to employees who are mem-
bers of Teamsters Union Local No. 2.
WE WILL rescind any fines assessed, refund any
fines collected, and restore membership status in
any case where our members have been penalized
for engaging in conduct deemed by us to have been
violative of article XXII of the existing contract.
UNITED BROTHERHOOD OF
CARPENTERS & JOINERS OF
AMERICA, LOCAL 112, AFL-CIO
DECISION
STATEMENT OF THE CASE
Louis S. PENFIELD, Administrative Law Judge: This con-
solidated proceeding was heard before me in Butte, Montana,
on 15 hearing dates occurring between June 5, 1973, and
October 26, 1973. The consolidated complaint was issued on
May 11, 1973. The charges in Cases 19-CC-588 and
19-CD-212 were filed by Summit Valley Industries, Inc.,
herein called Summit Valley, on October 12, 1972. The
charge in Case 19-CC-591 was filed on October 19, 1972, by
Jack McLeod & Associates, Inc., herein called McLeod. The
charges in Cases 19-CC-604 and 19-CE-21 were filed on
January 5, 1973, and the charge in 19-CC-604-2 was filed
on January 12, 1973. Each of the latter charges was filed by
the Chamber of Commerce of the United States of America,
905
herein called the Chamber. Copies of each of the charges were
duly served on the parties. The consolidated complaint al-
leges that Respondent United Brotherhood of Carpenters &
Joiners of America, Local 112, AFL-CIO, herein called the
Carpenters, engaged in various unfair labor practices in viola-
tion of Section 8(b)(4)(i), (ii)(A) and (B), 8(b)(4)(i) and
(ii)(D), and 8(e) of the Act.
While the hearing was in- recess, but after 3 days thereof
had been completed, the Chamber amended its charge in.
Case 19-CC-604 to join Southwest Building Trades Council,
herein called the Council, as an agent of the Carpenters with
regard to certain unfair labor practices. Thereafter, on July
20, 1973, the General Counsel moved to amend the complaint
to name the Council as agent for the Carpenters and a party
respondent. When the hearing reconvened on July 24I denied
the motion to amend after hearing argument on the record.
This ruling was appealed to the Board by the General Coun-
sel and the Chamber. On July 27 the Board reversed my
denial of the motion to amend and directed that I take appro-
priate action. Thereafter, I ordered that the complaint be
amended and that the Council be given time to answer, and
otherwise given the time and opportunity to review the record
already made. The hearing was recessed on July 27 and
resumed on September 11, at which time the Council ap-
peared by its attorney and remained and participated during
the balance of the hearing.
All parties were given full opportunity to participate in the
hearing, and after the close thereof, the General Counsel, the
Charging Parties, and both of the Respondents filed briefs.
Upon the entire record in this consolidated proceeding,
and upon my observation of the witnesses and their de-
meanor, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Jurisdiction is not contested. This proceeding, involving as
it does alleged violations of Section 8(b)(4), includes various
employers or groups of employers involved in the dispute
who may be characterized as primary or secondary employ-
ers within the meaning of the statute. Summit Valley, a Butte
manufacturer of modular houses, purchases materials and
supplies from sources outside the State of Montana valued in
excess of $50,000. Boise Cascade, another manufacturer of
modular houses,'has its plant in-Pocatello, Idaho, and di-
rectly ships houses manufactured there to purchasers in
States other than Idaho which are valued in excess of $50,000.
Silver Bow Contractors' Association and Butte Contractors'
Association represent various employers engaged in the gen-
eral contracting business in Butte, Montana. In the aggregate,
the business operations of such contractors realize a gross
income exceeding $500,000 and they purchase goods and
supplies originating outside the State of Montana, valued in
excess of $50,000. Under the circumstances it is obvious that
employers directly involved are engaged in businesses which
affect commerce within the meaning of the Act, and that
under existing Board jurisdictional standards assertion of ju-
risdiction is warranted, and I so find.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II THE LABOR ORGANIZATIONS INVOLVED
contractors . For many years collective -bargaining agree-
ments between Butte contractors and Respondent Carpenters
have controlled the working conditions.
The traditional so-called stickbuilt house involves the work
of various crafts, each represented by a different union. For
the most part, the differing skills and the jurisdictional lines
between the crafts are well defined . A stickbuilt house nor-
mally starts with the digging of a foundation ; preliminary
piping follows ; footings and concrete walls are then put in; a
frame is built; piping and basic wiring go in; outside siding
and roofing are put on ; and finally there will be inside finish-
ing and the installation of cabinets . Materials used by the
different crafts will be delivered to the jobsite, some in a
substantially prefabricated state!Onsite work, however, by all
crafts follows a more or less well-defined sequence toward
completion , with steady work performance depending on the
availability of workers in each craft as its work is needed.
Reasonably good weather conditions are required for most
jobsite work to progress . In the case of the Butte carpenters,
many innovations have been accepted in the past 25 years.
These include the use of power tools, precut lumber, prefab-
ricated cabinets , and many other items. It is estimated that
as a result of such innovations two carpenters at the present
time, are able to do the same amount of work which formerly
required the use of five carpenters.
Modular houses are best described as factory built. They
are a fairly recent development in the house building indus-
try. This proceeding directly involves two modular house
manufacturers , Summit Valley Industries , Inc. and Boise
Cascade Corporation. Summit Valley, the smaller of the two
enterprises , is located in Butte. The far larger,Boise Cascade
factory is located in Pocatello , Idaho, some 250 miles from
Butte, a location from which it serves a large area.
The construction process followed with a factory-built
house is similar at both enterprises. The houses are built
pursuant to a few well-standardized plans. The construction
takes place indoors and follows what is essentially an assem-
bly line process. Because of its fixed pattern, the work called
for is frequently repetitive . This enables the manufacturer to
staff the plant with job trained workers rather than having to
call upon the journeymen and apprentice craftsmen that job-
site -construction demands. In such a plant, full use will be
made of overhead cranes and readily available power equip-
ment of a diversified nature. This makes a substantial contri-
bution toward an efficient operation and a steady flow of
work . Normally, several houses will be on the production line
at the same time. This will make it possible to move em-
ployees from one area to another, and make full use of their
limited job-trained skills. Since all work is done indoors,
inclement weather does not result in work interruptions. Ac-
cordingly , employees working for modular house manufac-
turers have an opportunity for far steadier employment than
comes to employees working at jobsites . The centralization of
construction on all the houses also enables the manufacturers
to keep substantial inventories of materials and take full ad-
vantage of lower costs which may come about through mak-
ing large purchases.
Summit Valley produces only three different models of
modular houses from which a buyer may choose. Each of
these has a standard basis design but a variety of options are
open to a buyer. Boise Cascade has some 35 different plans
Respondent Carpenters and Respondent Council are each,
and at all material times have , been , labor organizations
within the meaning of Section 2(5) of the Act. '
III THE UNFAIR LABOR PRACTICES
The entire controversy in this lengthy and involved pro-
ceeding centers on the lawful or unlawful nature of a so-called
work preservation clause found in a contract between Re-
spondent Carpenters and certain building contractors who
function in Butte, Montana, and the adjacent area. It is the
contention of the General Counsel and the Charging Parties
that this clause was conceived for an unlawful secondary
"cease doing business" object, and that it was entered into
and enforced by unlawful means. The legal responsibility
of Respondent Council for aiding Respondent Carpenters
itself for alleged unlawful work assignment pressures repre-
sent subsidiary, but not unimportant, issues.
Respondent Carpenters contends the contract clause to be
concerned solely with lawful work preservation within the
rationale set forth by the United States Supreme Court in
National Woodwork Manufacturers Association, 386 U.S. 612
(1967), herein called National Woodwork. The General Coun-
sel and the Charging Parties dispute Respondent Carpenters'
interpretation of National Woodwork on several counts,
claiming, among other things , that the Carpenters' enforce-
ment efforts are unlawful within the rationale of the Board
in Plumbers and Pipefitters Local No. 438 (George Koch Sons,
Inc.), 201 NLRB 59 (1973), herein called Koch. Subsequent
to the close of this hearing Koch was affirmed in George Koch
& Sons, Inc. v. N.L.R.B., 490 F.2d 323 (C.A. 4,1973).
The disputed clause came into being in 1971 following a
strike in which it had been the primary issue. During the
strike efforts to obtain such a work preservation clause were
charged to be unlawful within the meaning of Section
8(b)(4)(A) and 8(e). After litigation these charges were dis-
missed by the Board in Carpenters Local 112 (Silver Bow
Employers-Association), 200 NLRB 205 (1972), herein called
the Silver Bow case. The lawful nature of the clause itself,
however, is again attacked in the instant proceeding along
with the lawful character of the means used to bring about
its enforcement.
The advent of modular houses into the Butte area brought
about the Carpenters demand for the clause. We will first
define the term "modular house" and contrast its meaning
with that of the more conventional type of house. Then we
will view the background against which the disputed clause
came into being and consider the means used to enforce it.
Finally, in addition to treating with the subsidiary issues, we
will evaluate the alleged unlawful nature of the object for
which the clause was pursued'or enforced.
A. Modular Houses, Stickbuilt Houses, and Carpenters
Work
Respondent Carpenters represents journeymen and ap-
prentice carpenters in the Butte area who work on the con-
struction of dwellings in commercial or industrial buildings.
Carpenters normally work for area contractors and perform
their work either at a building site or in the shops of the
CARPENTERS , LOCAL 112
and a greater variety of options. A modular house will come
from either factory as a finished product completely wired,
completely plumbed , with all appliances installed , with the
carpeting laid, and with the painting completed . It needs only
to'be transported to the building site, placed on-a foundation,
and to undergo what is called stitching together -to become
immediately habitable. The required stitching , however, in-
volves a substantial amount of work . The stitching is abso-
lutely essential for each modular house , and much of such
work falls within the carpenter 's craft. Larger houses are
usually transported in two halves which must be joined at the
jobsite by a stitching process. In every case there also will be
wires and plumbing to be connected , and usually the job will
include the hanging of some inside doors, and the building of
stoops, stairs , or railings . A modular house, of course, must
always be placed upon a foundation. This will have been
constructed prior to delivery . The construction of founda-
tions for modular or stickbuilt houses does not differ.
Modular houses are generally marketed to prospective pur-
chasers, either by the manufacturer directly or through a
dealer. Generally speaking , the purchaser chooses a model
from an available plan, chooses the options he desires, and
makes an initial deposit. After this the house will be built at
the plant . Upon its completion the manufacturer will receive
the agreed -on price usually obtained by financing with a lend-
ing institution : The completed house will be transported to
the building site by the manufacturer . Ordinarily the pur-
chaser makes his own arrangements with the contractor to
put in an appropriate foundation and do the needed stitching.
Summit Valley markets the houses which it builds directly.
At times material to this proceeding, Jack McLeod & Associ-
ates was the franchised dealer for the Boise Cascade houses
sold in the Butte area.
From the foregoing, it is apparent that each type of dwell-
ing is the product of a differing process. The building of a
stickbuilt house is for the most part a continuing jobsite
process involving the intermeshing of a number of crafts.
These crafts , following a somewhat fixed sequence , assemble
and construct the finished habitable dwelling from a variety
of material delivered to the jobsite in a greater or lesser pre-
fabriicated state. The overall size, the floor plan, and the
variety of elaborations in a stickbuilt house are limited only
by the money which the owner is prepared to spend. On the
contrary, a factory built modular house is a standardized
product . It is strictly limited as to size and pattern, with few
variations in design or floor plan available. The options relate
principally to such matters as types of wiring, types of
appliances to be installed , and differences in the paint or
other decor . The size of a modular house is limited by the
manufacturer's design, and such houses come only in a range
between 1 ,000 and 1 ,800 square feet. It is conceded that the
cost per square foot of a modular house is less than the cost
per square foot of a stickbuilt house of comparable size and
finish. Considerable testimony was received as to the relative
cost of the two types of houses, but it became apparent that
so many variables were involved that any definitive determi-
nation as to the precise range of the differential is not practi-
cal. Suffice it to say that the record establishes the differential
to be substantial , and the comparable quality of the two types
of houses sufficiently close that given similar sized houses, the
lower priced modular house would have a marked competi-
907
tive advantage. The record further shows there is a shortage
of houses in the price bracket within which modular houses
fall. Thus it is a fair assumption that the price advantage will
frequently result in a modular house being chosen by a pros-
pective purchaser, despite its standardized pattern.
As noted above, the manufacture of a modular house, un-
like the erection of a stickbuilt house, does not require the use
of skilled employees. Thus the employment pattern at the
manufacturer's plants ignores craft lines, and the work force
is comprised of job trained production and maintenance em-
ployees. Both Summit Valley and Boise Cascade employees
are organized along industrial lines. At Summit Valley, Local
No. 2 International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called the
Teamsters, represents the employees in a production and
maintenance unit. The Teamsters contract wage scale is sub-
stantially lower than that provided for the journeymen and
apprentice carpenters found in the contract between Re-
spondent Carpenters and the Butte Contractors. Absence of
a weather problem, however, makes plant employment pgssi-
ble on a more steady basis. A local of United Brotherhood of
Carpenters and Joiners of America represents the Boise Cas-
cade workers in Pocatello, also on an industrial basis. Al-
though the record does not disclose the wage scale it is a fair
assumption that the pattern is substantially similar to that
found at Summit Valley.
It is both traditional, and necessary, that in building a
stickbuilt house, carpenters will do all needed woodwork on
the foundation and basements, all woodframing, all interior
and exterior siding, all shingling, and the installation of all
the cabinets. When a modular house is taken to a jobsite only
the foundation forms, the stitching, and some work on stairs,
railings, and doors remain to be done at the jobsite. All the
interior and exterior woodwork will have been done at the
factory. This necessarily means that there will be less jobsite
work for carpenters in any given situation where the house
is modular rather than stickbuilt.
B. The Background, the Strike, and Article XXII
Respondent Carpenters and some fifty contractors in the
Butte area who employ carpenters have had a collective-
bargaining relationship for many years. Insofar as this record
shows, prior to 1969, no serious problems relating to onsite
construction work had arisen between these contracting par-
ties.
In 1969, John A. Bender, a Butte realtor, became the fran-
chised dealer for Interstate Homes, Inc. Interstate manufac-
tured modular houses in a nonunion plant located in Salt
Lake City, Utah. Houses that Bender sold to customers were
to be slipped by Interstate to the Butte area and placed on
appropriate foundations there. The foundation and the stitch-
ing work was to be done by contractors employed by Bender
or his customers. When this was noted by Respondent Car-
penters, Respondent Council, and other construction unions,
they brought pressures against the Butte contractors to pre-
vent their doing the needed work to make the houses habita-
ble. This resulted in 8(b)(4)(B) charges lodged against Re-
spondent Carpenters, Respondent Council, and the Laborers
Union. The issue was litigated and a Board decision was
issued on January 29, 1971, in Southwest Building Trades
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Council of Montana, et al. (John A. Bender) 188 NLRB 224,
herein called the Bender case. The Board found the conduct
of all three labor, organizations to be violative of Section
8(b)(4)(ii)(B) of the Act. An examination of the decision
makes it apparent that the unions viewed with alarm the
entry of-prebuilt houses into the Butte area. Their objections
were expressed both in terms of the nonunion manufacture of
such houses, and fear of loss of jobs by local craftsmen should
many of these prebuilt houses reach the area. It was the latter
that appears to have been the primary concern of James
Cadigan, then and still the Carpenters business agent, for he
is reported to have expressed himself by stating "Our dispute
is protecting the work of our people." The Board found,
however, that even a work preservation object would not
insulate the unions from 8(b)(4) sanctions in the existing
circumstances, because they were exerting their pressures on
the wrong persons, and thus were using a proscribed means
of enforcing even a lawful object. At the time of Bender, none
of the unions had a contract containing a work preservation
clause of any sort. Thus the contractors had neither a con-
tractual obligation nor the power to give any of the work on
the houses to any of the Butte unions except for the founda-
tion and stitching work. Thus it was reasoned that at this
time, the real dispute of the unions was with Interstate and
Bender. Therefore'pressures directed against the contractors
involved them in a dispute not their own, with an object of
causing such contractors to cease doing business with Inter-
state and Bender, and such conduct was found to be violative
of Section 8(b)(4)(ii)(B).
The decison in Bender made it clear that to the extent the
unions viewed the coming of modular houses as a threat to
local jobs they would be unable to pursue lawful work preser-
vation objects without, at the very least , negotiating a con-
tract with a lawful work preservation clause . The contract
which Respondent Carpenters had with the Butte contractors
came up for renewal in the spring of 1971. Respondent Car-
penters proposed a work preservation clause in the new con-
tract for the ostensible purpose of protecting the onsite jobs
of its members against the apparent erosion that they en-
visaged would come about should fully prebuilt houses be
brought into the Butte area. The contractors resisted such
work preservation proposals.' The associations argued that
the inevitable effect of the work preservation proposals would
be to make it impractical or impossible for modular houses
to be brought in and sold in the Butte area. They further
argued that the lower price range of these modular houses
was sufficiently below that for stickbuilt houses that their
entry into the area would not interfere with or diminish the
stickbuilt market but would open up a new market, and that
this would have the ultimate effect of providing added work
for the Butte labor market. Respondent Carpenters, however,
was not persuaded of the validity of these claims and re-
I The contract negotiations involved all 50 of the contractors engaged in
carpentry work in the Butte area Previous negotiations had been carried on
by an association known as Silver now Employers Association, which had
been comprised of some of the larger contractors in the area. Former prac-
tice had been for smaller contractors to become individual parties signatory
to negotiated agreements. In the 1971 negotiations, however, a new associa-
tion, known as Butte Contractors Association, which included the smaller
carpentry contractors, was formed The two associations carried on the 1971
negotiations jointly When agreement was finally reached, identical con-
tracts were signed by both associations
mained adamant in insistence that the new contract must
have a work preservation clause. Other bargaining issues
were resolved, but failure'to agree on a work preservation
clause precipitated a strike in May ,1971-that lasted, for ap-
proximately 90 days. At the end of this-time, the contractors
capitulated and the associations signed two identical con-
tracts, each containing article XXII, which reads in relevant
part as follows:
Contracting or Sub -Contracting of Work to be Done at
the Site of Construction'
Section 1. Application. The Employers are in the con-
struction industry and both parties have elected to come
under the proviso applicable to the construction industry
contained in Title 29, Section 158(e) of the United States
Code as amended.
Section 2. Scope of the Foregoing.,Sections 1 and 3 of
this Article relates to contracting or sub-contracting and
work to be done at the site of the construction, alteration
or repair of a building structure or other work. -
Section 3. (A) All of the following work shall be per-
formed at the site of construction, alteration, or repair-
ing of the building structure or other work and shall not
be sub-contracted off the job site, unless said work is done
at the Employer's shop.
(1) All the erection of the forms for basements and/or
footings for the structures. Nothing herein shall be
construed to apply to prebuilt forms which have,
through past practice, been utilized by the Employers.
(2) The installation of all exterior siding or finishing,
or, in the alternative-, all wallboards and/or paneling.
(3) The installation of all exterior trim on the struc-
ture, or in the alternative, all interior trim on the
structure.
(4) The installation of all interior doors on the struc-
ture.
(5) The shingling of all roofs, whether wood, metal, or
composition material.
(6) Installation of all cabinets and shelving.
(7) The cutting and installation of all wooden stairs
and/or bannisters.
(8) The installation of all form work for steps and/or
stoops . . . .
(9) The placing and fastening of all components of the
structure upon the foundation.
(B) Nothing herein shall apply to any structures in the
following situations:
(1) [Omitted]
(2) When the construction work done by the Em-
ployer at the site of a pre-assembled or pre-built single
family dwelling unit consists of building independent
structures such as garages or other structures that are
not part,of the unit itself.
(C) No Employer shall be discriminated against, nor
be adversely affected by the Union, for accepting and
completing any sub-contracted work that conforms to
Paragraph A of this Article.
(D) Nothing herein shall be construed to restrict work
by carpenters or contractors when pre-fabricated or
pre-built components of construction not listed in
CARPENTERS, LOCAL 112 909
Paragraph A are utilized, installed or assembled at the
site of construction.
Business Agent James Cadigan testified at length concern-
ing article XXII. Cadigan stated that at all times he and the
membership of his Union feared that bringing modular
homes into the Butte area would cause union members to lose
work that had been traditionally performed by the carpenters
because such work had already been done at the factories.
Cadigan insisted that his concern was not with having his
members do the factory work, nor with whether or not such
factory work had been performed under union or nonunion
conditions, but that the membership feared erosion of work
opportunities should modular houses arrive at the jobsite
with so much of the carpenters' traditional, and formerly
necessary, jobsite work already completed. Cadigan testified
that he viewed the prospects for expanding employment for
carpenters in Butte to present no cause for optimism. Cadigan
noted that in the past 80 years membership in Respondent
Carpenters had dropped from nearly 1,000 to 400. Cadigan
stated that the economic health of Butte had long depended
on the functioning of the Anaconda Copper Co. In the past
10 years the Carpenters membership had fluctuated between
300 and 400 with a top figure being reached only during those
times when some special Anaconda project was under way.
Cadigan noted that residential construction had been reason-
ably active for a period recently because of certain Anaconda
expansion plans, but that in the future he saw nothing,
either in the Anaconda situation or elsewhere to support an
optimistic view as to substantial residential construction. It
was such considerations that made the membership deem it
appropriate to take whatever steps were available to retain
for themselves all the traditional jobsite work possible.
Cadigan noted that in the negotiations Carpenters had been
willing to agree to accept prefabrication in substantial measure,
and that article XXII permits substantially completed factory-
built houses to be brought in. He stated the sole purpose of
article XXII was to insure retention of a certain minimum
number of jobs.
Article XXII represents a compromise. It permits carpen-
ters to work on prefabricated houses delivered to a jobsite
with either the "exterior siding or finishing" left off, or in the
alternative, "all wallboards and/or panelling" left off. In ad-
dition, it requires the house to be delivered with either "all
exterior trim" left off, or in the alternative, "all interior trim"
left off. Also, article XXII provides that the installation of all
interior doors, the shingling of all roofs, the installation of all
cabinets and shelving, the cutting and installation of all
wooden stairs and bannisters, the installation of all form work
for steps and stoops, and "the placing and fastening of all
components of the structure upon the foundation" must be
performed by jobsite carpenters. Cadigan acknowledges this
to mean that the structure would arrive at the jobsite as
somewhat of a shell. However, he interprets article XXII to
mean that every bit of the work enumerated must be given to,
and performed by, the jobsite carpenters or there will be a
violation of article XXII. Article XXII also provides that
jobsite carpenters must perform foundation work and install
stairs and bannisters . These are items which in a usual situa-
tion a contractor would be asked to perform on a modular
house delivered to a jobsite. Cadigan interprets article XXII
to mean that unless jobsite carpenters are given all the other
work set forth in article XXII, it will be a violation for a
contractor to perform any work whatsoever even though such
traditional carpenters' work is absolutely essential to make
the modular house habitable. Summit Valley and Boise Cas-
cade houses as currently manufactured arrive at jobsites with
most of the article XXII work completed. Cadigan states that
this means that any work a contractor does on foundations,
stitching or otherwise on such a house, would be violative of
article XXII and any member doing such work would be
subject to fines or other union discipline.
The record establishes that while it may not be impossible
to manufacture or deliver structures in the unfinished state
required by article XXII, both Summit Valley and Boise
Cascade deem such a mode of operation to be impractical. In
substance, each would regard a structure only completed so
as to conform to article XXII as a different product from the
fully finished modular house each now delivers. Each believes
that to undertake the fabrication of such a product would
defeat many of the economic advantages of their current
production line manufacturing process. They also see dangers
of damage in transit both from the lack of rigidity of such a
structure and from its unenclosed state in inclement weather.
Each would also foresee problems in getting insurance and
adequate financing for an unfinished house. In addition each
views such an unfinished house as far less marketable, and in
all likelihood ultimately more costly. A production change to
produce such unfinished houses would be a major one which
each would regard as highly undesirable even though
theoretically possible.
In view of the foregoing, I am satisfied, and find that
enforcement of article XXII as interpreted by Cadigan would
make it impossible for any Butte contractor to do any of the
work necessary to make the Summit Valley and Boise Cas-
cade modular houses habitable. Thus enforcement of the
clause would force or require such contractors to cease doing
business with these two manufacturers unless and until they
changed their mode of operation so as to deliver their houses
to jobsites in the unfinished state required by article XXII.
Agreement on article XXII was reached by the Charging
Parties in August 1971. The employer- association brought
8(b)(4)(i)(ii)(A) and 8(e) charges against Respondent Carpen-'
ters charging article XXII and the efforts made to obtain it
to be unlawful within the meaning of Section 8(e). The issues
raised by these charges were litigated and the Board issued
a decision on November 9, 1972, in Silver Bow, supra. The
Board dismissed the complaint in its entirety, finding that the
work tasks set forth in article XXII, "constituted work cur-
rently, traditionally and historically performed by its mem-
bers, and that their effect upon the use by contractor mem-
bers of modular homes, whether unionbuilt or otherwise, was
purely incidental." The Board's conclusion rests primarily
upon its evaluation of the Supreme Court decision in National
Woodwork, supra. In National Woodwork, the Supreme
Court, under circumstances to be more fully discussed below,
found a union's efforts to obtain and enforce a clause designed
to preserve traditional work of a contracting union to be a
lawfully primary endeavor. In Silver Bow, the Board noted,
however, that the Supreme Court had not passed upon a work
preservation issue where the contracting employer had no
control over the nature of the product brought to the jobsite.
The Board also noted that in Silver Bow the litigation was
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
limited to a consideration of the language of article XXII on
its face, for at the time of the hearing no attempt had been
made to enforce the provisions of the clause . Thus the legality
of any enforcement attempt was not before the Board at that
time. What, if any , effect subsequent efforts in that direction
would have on the lawful nature of the clause itself is an issue
in the instant case and will be considered below.
C. The Events Immediately Preceding and the Incidents
Resulting in the Charges in the Instant Cases
While the so-called Silver Bow case was still pending, Re-
spondent Carpenters took no steps to enforce article XXII.
However, after the Administrative Law Judge issued his deci-
sion in May 1972, Respondent Carpenters , believing the le-
gality of the clause to have been resolved in its favor , under-
took to implement its enforcement . Thus it was between May
1972 and November of the same year when an injunction
issued that the particular circumstances and incidents relat-
ing to the enforcement of article XXII took place.
In January 1972, Jack McLeod and Associates , a Butte real
estate firm, became the franchised dealers for marketing
Boise Cascade houses in the Butte area. McLeod 's customers
were offered a choice of a suitable plan from among those
available from Boise Cascade ; McLeod would then forward
the customer's order to Pocatello for manufacture ; McLeod
would then assist the customer in obtaining local financing;
and McLeod would assist and direct the customer in making
needed arrangements with local contractors for putting in a
suitable foundation and performing the needed stitching
work . It was the responsibility of Boise Cascade to transport-
the house from Pocatello to the Butte area. This would be
done by a house-moving contractor chosen by Boise Cascade.
At times material to us, Boise Cascade used the services of
Reed Lemmons , who both transported the house and placed
it on a waiting foundation . 2 At times , McLeod would pur-
chase a Boise Cascade house himself to sell on speculation.
In such cases , McLeod would make his own arrangements
with local contractors . In other cases, it would normally be
the customer who assumed this responsibility with McLeod
acting only in an advisory capacity.
Summit Valley is a local Butte enterprise. It did not come
into being until June 1972. Summit Valley is owned by a
number of Butte residents including Gene Spolar who, in
addition to being part owner, also serves as plant manager.
Prior to undertaking the management of Summit Valley, Spo-
lar had been a building contractor in the Butte area , owning
and operating a business known as Spolar Construction, Inc.
Spolar Construction , Inc. was party signatory to the collec-
tive-bargaining agreement with Respondent Carpenters
which includes article XXII . Although Spolar Construction,
Inc., may still exist as an entity, it does not appear to have
functioned actively as a building contractor after Summit
Valley began its operations in June with Gene Spolar in
charge. In hiring employees for Summit Valley, Spolar made
no effort to hire employees skilled in any building construc-
tion crafts . Instead , from the outset , Spolar hired unskilled
workers and undertook to give them job training in the manu-
z In the record the name of this contractor is variously referred to as "Red
Lemon," "Reed Lemons ," and "Reed Lemmon ." All references are to the
same housemover.
facturing process. Respondent Carpenters initially believed
Spolar Construction to be operating the plant in violation of
its contract and its bargaining obligation and it filed charges
relating to such conduct. These charges were subsequently
withdrawn by Respondent Carpenters when it learned that
Summit Valley was an entirely separate entity. Shortly after
the plant opened , Butte Teamsters Union , Local No. 2, herein
called the Teamsters , undertook to organize the Summit Val-
ley plant employees . Neither at that time , nor at any time
later , has Respondent Carpenters made any claim to repre-
sent the plant employees at Summit Valley. Summit Valley
accorded the Teamsters recognition as the statutory represen-
tative of its employees , and in September 1972 executed a
contract with the Teamsters covering the working conditions
of such employees . The bargaining unit is described as "all
production workers, fabricators , erectors , assemblyline work-
ers, maintenance workers, cleanup workers, watchmen, and
drivers employed by the employer at its Butte, Montana,
operation."
Aside from the alleged unlawful nature of article XXII
itself, the other conduct claimed to be unlawful falls into two
general categories : (1) pressures directed against the Butte
contractors bound by article XXII or against the employees
of such contractors ; and (2) pressures directed against Sum-
mit Valley or Boise Cascade either directly or through their
agents or employees , including a work assignment issue
which involves Summit Valley alone.
1. Incidents involving the contractors
Pressures were directed against various of the contractors
bound by article XXII with respect to work to be done at
Butte jobsites on modular houses manufactured by both Sum-
mit Valley and Boise Cascade.
The Jovick incident.- Jovick Construction , Inc., is a local
Butte contractor . Jovick had been engaged to install a house
foundation and attached garage at a Butte jobsite. At the time
he undertook the job, Jovick had no knowledge that the
owner was planning to place a Summit Valley house on the
foundation. On October 3, 1972, Cadigan directed Leo Cal-
caterra, a union member that Cadigan observed shingling a
roof on an attached garage, to stop work . Cadigan told Cal-
caterra that "these modular homes are unfair to our con-
tract," and that "we weren't supposed to work on them."
Calcaterra immediately left the job and reported to Jovick.
Subsequently, Jovick met with Cadigan who told him in sub-
stance that he could not put in foundations for, or do any
work whatsoever on, Summit Valley houses unless and until
they came to a jobsite in the unfinished condition required by
article XXII . Cadigan concedes that he told Jovick that any
work on a Summit Valley house would be a violation of
article XXII . When Jovick continued to work on thejob after
learning this from Cadigan, charges were brought against
him as a member of Respondent Carpenters for violating his
union obligations . The union trial committee found Jovick
guilty of violating his obligation to "abide by the rule of the
majority , which says that he will do the work under Article
XXII ." The trial committee recommended that Jovick re-
ceive the maximum penalty.'
3 At the same trial , Jovick was also found guilty of using his two sons to
help in erecting concrete forms The General Counsel suggests that Cadigan
(Continued)
CARPENTERS, LOCAL 112
The Perusich incident: Bill Perusich , another Butte con-
tractor, had been engaged to install a foundation for what he
later learned was a Boise Cascade house. On or about August
24, 1972, when two of his employees were working on such
job, Cadigan appeared at the jobsite and told the employees
that they "couldn't work on this particular job." Responding
to their questions Cadigan advised them "that McLeod was
unfair" and had "brought scab labor and set the houses up
on the foundation ." Cadigan also advised the employees that
union members "were either going to get 50 percent of the
work on the houses, or [they] weren't going to do any of it,"
and that if they continued working on the job they might be
fined. Perusich later saw Cadigan about the problem and
obtained permission from him to finish up his work on that
one house. Cadigan, however, made it clear to Perusich that
unless McLeod or Boise Cascade fully complied with article
XX][I, there was to be no more work on such houses. Cadigan
admits that he ordered the employees off the job, and that he
discussed the requirements of article XXII with Perusich.
The Lutey incident: Lutey Construction , another Butte
contractor , had an employee working on foundation forms
for a Boise Cascade house. On October 13, 1972, Cadigan
ordered the employee off the job, telling him that union mem-
bers were not to work on modular houses, and that if he
continued to work on the job "he could be in serious trouble."
The employee left the job. Lutey subsequently communicated
with Cadigan who explained that under article XXII he
should not work on any modular houses whether the work
related to foundations or any other thing. Cadigan did, how-
ever, give Lutey permission to strip the forms that had al-
ready been put in. Lutey sent his son to the job for this
purpose a few days later. The son came to the jobsite at a time
that 'Lemmons was in the process of placing a Boise Cascade
house on the foundation . According to the son , Cadigan ar-
rived at the job and told him "that he had better pick up his
tools and get off the job, that this was a nonunion job."
Cadigan's version of the incident does not differ substantially.
He admits that he ordered the employees from the job be-
cause any work on a Boise Cascade house would be done in
violation of article XXII . He states , however, that the fact
that Lemmons Moving Co . was nonunion was an irrelevant
consideration because, even had the contractor himself been
placing the house on the foundation , this too would have been
in violation of article XXII, and the employees would have
been directed to leave the job, and they and the contractors,
had they declined to follow such directions , might have been
subjected to union fines.
In none of the foregoing incidents did any contractor have
power to control the state of completion in which the modu-
lar house was to come to the jobsite. As we have seen with
the exception of the foundation and some of the needed
stitching work , the modular houses being sold by Summit
Valley and Boise Cascade arrived at the jobsite with all other
article XXII work , both inside and out, completed. Thus,
in ordering Jovick to cease using such forms was harassing him because the
forms belonged to Gene Spolar and that this was just another facet of the
unlawful pressure . I am not satisfied from this record that the charges
relating to Jovick's sons necessarily have a direct relationship to the issues
with which we are concerned in this proceeding and accordingly make no
finding relating thereto
911
although the construction of a foundation and the required
stitching were essential to make the houses habitable, the
contractor was powerless to perform any of the other article
XXII work because it already had been done . It was the
purchaser , not the contractor , who was responsible for the
type of house to be delivered . The manufacturers , Summit
Valley or Boise Cascade , alone directly controlled the fin-
ished or unfinished state of the houses they were marketing.
2. The pressures against Summit Valley, Boise Cascade,
their agents or employees
With respect to Boise Cascade there were several incidents
involving pressures directed against its agents or employees
which are claimed to constitute unlawful inducement or coer-
cion within the meaning of Section 8(b)(4). With respect to
Summit Valley, the alleged unlawful pressures concern a pat-
tern of events allegedly aimed at both enforcing article XXII
and compelling the work assignment.
The Lemmons incident: Reed Lemmons is a housemover
under contract with Boise Cascade to deliver Boise Cascade
houses to the Butte area. In early August, while Lemmons
and his crew were placing a house on a foundation , Cadigan
visited the jobsite . According to Lemmons , Cadigan asked if
Lemmons' employees were union and , upon learning that
they were not, told Lemmons he must leave the jobsite. Ac-
cording to Lemmons, he understood Cadigan to represent
that setting a house on a foundation was carpenters' work,
and that Respondent had an agreement with Boise Cascade
that houses were not to come to the jobsite fully built but in
an unfinished state so that carpenters could finish them. Lem-
mons declined to leave explaining that the house belonged to
McLeod and that he would leave only if McLeod told him to.
At this point , Lemmons says Cadigan replied , "I'll have pick-
ets out at 8 in the morning ." Cadigan concedes he was aware
that the house had been manufactured by Boise Cascade, and
admits telling Lemmons that the work of unloading the house
belonged to the carpenters . He also admits asking Lemmons
if the crew belonged to any local of the Carpenters Union
although he denies threatening Lemmons that Carpenters
would picket if he refused to leave Lemmons completed his
unloading work and no picketing ever ensued.
The McLeod incident: Following the confrontation with
Lemrnons, McLeod and Cadigan met several times and dis-
cussed the problems of bringing in Boise Cascade houses.
Although there are some differences in the versions of each
as to what transpired in these discussions there is no basic
conflict. Thus, Cadigan made it clear to McLeod that the
work of placing modular houses on foundations belonged to
the Butte carpenters . He also made it clear that houses were
not to come into the Butte area unless they were in the
partially unfinished state required by article XXII. Cadigan
suggested that possibly McLeod's dealership indicated he was
going into the contracting business , and that if this were so,
like all other contractors in the area he must also be bound
by"article XXII. Admittedly, Cadigan presented McLeod
with a copy of the contract and suggested that he sign it,
indicating that unless he did so, Respondent Carpenters
would take steps to see that no more Boise Cascade homes
were brought into Butte. I view Cadigan's confrontations
912- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with McLeod as one facet of his efforts to press for enforce-
ment of article XXII. Basically, and this is not denied by
Cadigan, he was representing to McLeod that no houses were
to come into Butte that did not meet the requirements of
article XXII. If McLeod were to undertake the work himself
as a contractor, he too was to be bound by article XXII. If
local contractors were to be hired, they would only function
pursuant to article XXII. Essentially, Cadigan was threaten-
ing McLeod either with picketing or with other consequences
if he continued to bring Boise Cascade houses into the area
in their present finished state. He was pressing McLeod either
to stop bringing them in altogether, or else to make such
changes in his arrangements with Boise Cascade that they
would come in the unfinished state required by article XXII.
The Garry and Pratt incidents: Possibly as a result of the
difficulties McLeod was having in placing the Boise Cascade
houses on Butte jobsites, at some point in late September or
early October, Boise Cascade assigned two of its Pocatello
employees, David Garry and Doyle Pratt, to do needed
stitching work on Boise Cascade houses in the Butte area.
Both Garry and Pratt were members of Carpenters Local
1258 in Pocatello. Before going to work in Butte both visited
Cadigan at his office. According to Garry, when they ex-
plained their purpose in coming to Butte, Cadigan stated,
"There is no work for Boise Cascade," because Boise Cascade
"is not signatory to our local agreement." Following this,
Garry stated, Cadigan told them that if they went to work,
"We will slap a picket on the job." Upon receiving this infor-
mation, the two employees advised Cadigan that both were
members of a carpenters local in Pocatello and that neither
had come to Butte to cause problems there. The two men left
and advised McLeod that Cadigan "would not let [them] go
to work." Thereafter, both returned to Pocatello. Cadigan
denies that he ever indicated that Boise Cascade should sign
a contract with his union, or that he ever threatened to picket
the job if the men worked on it, but he concedes that he did
discuss article XXII with them at some length, and he con-
firms that they voluntarily agreed that they did not wish to
cause problems in Butte and would return to Pocatello.
The Summit Valley incidents.- As we have seen, Summit
Valley entered into a contract with Teamsters shortly after it
commenced its operation in June 1972. While this agreement
was primarily applicable to the production and maintenance
workers at the plant itself, it contained a provision which
reads as follows: "The employer recognizes the jurisdiction of
the Union over all manufacture and assembly work, includ-
ing following the product to its final destination and prepara-
tion of the site, so as to preserve and protect the integrity of
the products manufactured by the bargaining unit."
The Jovick incident establishes that because of article
XXII employees of the contractors were not to do onsite
work on Summit Valley houses. Accordingly customers of
Summit Valley requested that Summit Valley undertake the
needed work pursuant to the contractual provision in the
Teamsters contract above set forth, in order that the modular
houses purchased from Summit Valley might be made habita-
ble. It was shortly after this that Respondent placed a picket
at the Summit Valley plant. The picket carried a sign reading:
"This employer does not employ members of Carpenters
Union in the work to be performed on this building. Local
112, Carpenters Union, AFL-CIO."
The building referred to in the picket sign was a completed
modular house manufactured by Summit Valley, which was
situated in close proximity to the picket sign. This picketing
brought about the charges filed by Summit Valley in Case
19-CD-212. This case - in combination with Cases
19-CC-588 and 591 resulted in the General Counsel obtain-
ing a 10(1) injunction from a U.S. District Court which issued
on November 8, 1972.'
Following a 10(k) hearing in Case 19-CD-212, the Board
issued a Decision and Determination of Dispute in United
Brotherhood of Carpenters & Joiners of America; 202 NLRB
974, on April 6, 1973. The findings of the Board as set forth
in that decision need not be repeated here. Suffice it to say
that the Board concluded that employees of Summit Valley,
currently represented by Teamsters, "are entitled to the work
of manufacturing or building of prebuilt or modular homes
and other structures, including work necessary to make these
structures habitable, to the extent that all such work is
claimed by the United Brotherhood of Carpenters & Joiners
of America, Local 112, AFL-CIO, pursuant to its collective
bargaining agreement with Silver Bow Employers Associa-
tion and Butte Contractors Association." (Emphasis sup-
plied.) Thereafter, Respondent Carpenters advised the Re-
gional Director that it would not require Summit Valley to
assign work in violation of the Act but stated further:
That the Union affirms that it has the right, and will
under some circumstances use its rights under the Na-
tional Labor Relations Act, to truthfully advise the pub-
lic, whether by picketing or other publicity that the Sum-
mit Valley Industries, Inc., does not employ members of,
or have a contract with the United Brotherhood of Car-
penters & Joiners of America, Local 112, AFL-CIO, if,
in fact, such is the truth and such picketing or publicity
is for the sole purpose of advising the public of the
situation.
Inasmuch as Respondent Carpenters had made a similar in-
formational claim during the course of the 10(k) hearing the
Regional Director did not construe the language set forth
above as an unequivocal disclaimer of Carpenters interest in
obtaining the onsite work. Accordingly, the complaint in the
CD case was issued. No evidence was adduced in the instant
proceeding indicating that the situation thereafter has
changed in any particular.
3. Summary as to the incidents
All violations of Section 8(b)(4) have a dual aspect. First,
they must show conduct which amounts to unlawful induce-
ment of employees, or restraint and coercion of employers,
and thus it must be shown that such conduct was undertaken
for an object proscribed by the statute. The incidents which
have been set forth above are substantially undisputed. While
some variance exists in the testimony of Cadigan and that of
other witnesses with respect to happenings regarding in-
4 By terms of the injunction Respondent Carpenters was enjoined from
picketing or otherwise inducing employees of Jovick with an object of forc-
ing Summit Valley to assign work to employees represented by Respondent
Carpenters rather than represented by Teamsters, and also enjoined from
unlawful enforcement of art. XXII by forcing the contractors to cease doing
business with McLeod or Boise Cascade Such injunction is still in effect
CARPENTERS, LOCAL 112
dividual incidents, the central thrust of Cadigan's conduct
whether with respect to employees, contractors, or others,
stands out clearly. Respondent Carpenters had undertaken a
3-month strike to obtain a work preservation clause which it
believed to be lawful. The legality of the clause had been
attacked, but after litigation and an initial decision the Car-
penters position on article XXII had been upheld. The clause
was apparently lawful within the meaning of National Wood-
work Understandably Cadigan now deemed it appropriate to
enforce it and he proceeded in a forthright and undisguised
manner to do so.
Clearly Cadigan's directions to employee-members of Re-
spondent Carpenters to leave jobsites in the Jovick, Perusich,
and Lutey incidents represent inducement of employees
within the meaning of Section 8(b)(4)(i) and I so find. Cadi-
gan's discussions of article XXII with the employer contrac-
tors occurring in connection with the same incidents were
intended to be and clearly came through as threats of reprisal
should the contractors continue to work on modular houses
arriving at jobsites in a condition which did not conform to
the requirements of article XXII. Such conduct by Cadigan
constitutes restraint and coercion of such employers within
the meaning of Section 8(b)(4)(ii), and I so find.
The foregoing incidents each involved employers bound by
the provisions of article XXII. The Lemmons, the McLeod,
the Garry-Pratt, and the Summit Valley incidents each in-
volve conduct directed against persons not in privity of con-
tract with Respondent Carpenters. The threats or induce-
ment by Cadigan, however, are equally well established.
Despite his denial, I have no doubt that Cadigan threatened
Lenunons with the possibility of picketing should Lemmons
continue to place Boise Cascade houses on foundations. Cadi-
gan was also threatening McLeod with reprisals should he
continue to bring in Boise Cascade houses in their finished
state. Becoming bound to, and abiding by, a contract with
article XXII was one way McLeod could meet the problem.
Since McLeod was a dealer for Boise Cascade, this was at the
same time a threat against Boise Cascade to change its opera-
tion to conform to article XXII or face problems with its
houses coming to the Butte area Thus I find Cadigan's con-
duct toward both Lemmons and McLeod to constitute
threats and coercion against each of them and against Boise
Cascade within the meaning of Section 8 (b)(4)(ii). With re-
gard to Boise Cascade employees Garry and Pratt, Cadigan
urged them as union members not to work on Boise Cascade
houses in the Butte area, and indicated they might have trou-
ble with his union should they attempt to do so. This was
obviously inducement of these employees not to work on
Boise Cascade houses in Butte within the meaning of Section
8(b)(4)(i) and I so find. With respect to Summit Valley, the
picketing was both inducement of employees of Summit Val-
ley and restraint and coercion of Summit Valley within the
meaning of Section 8(b)(4)(i) and (ii), and I so find. Whether
any or all of these incidents of restraint and coercion were for
a proscribed object, and then became conduct violative of
Section 8(b)(4) is to be considered below.
D. The Alleged Unlawful Objects
Respondent Carpenters does not seriously contest that it
engaged in the various pressures, as described above, both to
913
attain and enforce article XXII. It defends such conduct by
asserting that it was undertaken for the lawful primary object
of obtaining and enforcing a lawful work preservation clause.
The General Counsel and the Charging Parties claim the
enforcement efforts against both contracting and noncbn-
tracting parties to have had an unlawful object within estab-
lished Board doctrine. Further, they claim that such enforce-
ment efforts, coupled with various "surrounding
circumstances," warrant a finding that "entering into" a con-
tract containing article XXII is unlawful within the meaning
of Section 8(e) and that pressures to attain it were violative
of Section 8(b)(4)(A).5 To resolve these issues we must first
consider the work-preservation concept as evolved by the
Board and the courts, and then undertake to apply it to the
facts and circumstances surrounding this case.
The decision of the Supreme Court in National Woodwork
sets the basic parameters of the work preservation
concept.6 We will consider the holding of the Supreme
Court in this case and its limitations, as well as the various
interpretations later made by the Board and the courts of its
full meaning.
The basic issue before the Court in National Woodwork
involved a so-called product boycott situation, a common
occurrence in the construction industry. A product boycott
may occur when an employer brings a prefabricated product
(i.e., doors, cabinets, an entire house, etc.) to his jobsite, his
employees are asked to install or otherwise work on such
product and a union brings pressure of one sort or another,
designed to prevent the employees from handling or other-
wise working on the product. When the employer yields to
pressure of this nature, he must, in effect , "cease doing busi-
ness" with the producer of the product, and either obtain the
product elsewhere or have his own employees produce it for
him.' No purpose will be served by a historical analysis of
5 The General Counsel and the Charging Parties correctly point out that
the term "entering into" is not limited to the initial signing of an agreement
but that, at least for 10 (b) purposes , a contract may be viewed as reaffirmed
or "reentered into" when its terms are acquiesced in or enforced by the
parties This record establishes without dispute that Respondent Carpenters
pressed for enforcement of art XXII , bringing pressures against both the
contractors and their employees, and that the employers yielded to such
pressures. Therefore they may be said to have "entered into" the contract
at the times such pressures were asserted Thus we are not precluded from
considering the validity of art XXII per seas distinguished from the manner
of its enforcement. Dan McKinney Co., 137 NLRB 649 (1962); Milk Drivers
and Dairy Employees Local Union No. 537 (Sealtest Foods), 147 NLRB 230
(1964)
6 National Woodwork Manufacturers Association v. NL R B, 386 U.S
612 (1967)
' In relevant part Sec 8(b)(4) and 8 (e) reads as follows:
(4)(i) to engage in, or to induce or encourage any individual employed
by any person engaged in commerce or in an industry affecting com-
merce to engage in, a strike or a refusal in the course of his employment
to use, manufacture, process, transport or otherwise handle or work on
any goods , articles, materials, or commodities or to perform any ser-
vices; or (ii) to threaten , coerce, or restrain any person engaged in
commerce or in an industry affecting commerce, where in either case
an object thereof is-
(A) forcing or requiring any employer or self-employed person to join
any labor or employer organization or to enter into any agreement
which is prohibited by section 8(e),
(B) forcing or requiring any person to cease using , selling, handling,
transporting, or otherwise dealing in the products of any other pro-
ducer, processor, or manufacturer, or to cease doing business with any
(Continued)
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(b)(4) and 8(e). Suffice it to say that the protections
of employers against union pressures to cease doing business
with other persons were in a measure aimed at product boy-
cott situations. It is with the limitation on the degree of this
statutory protection that National Woodwork concerns itself.
Its basic holding is that the scope of the protection is not
unlimited, and that not every situation where there is a cease-
doing-business object and effect will render the pressures un-
lawful.
In National Woodwork, we find a subcontractor (Frouge)
working at a construction jobsite. Frouge had a contract with
a union whereby he had agreed that union members would
not be required to handle prefabricated doors. Nevertheless,
Frouge purchased and brought prefabricated doors to the
jobsite to be installed. The union ordered its members not to
handle them. Fabrication doors by union members was ad-
mittedly their traditional work, and Frouge's contract with
the general contractor did not preclude his bringing so-called
blank doors to the jobsite for his employees to fabricate. The
Court undertook an elaborate review of the legislative his-
tory, but the justices split five to four on its meaning. All the
justices agreed that if the clause be deemed lawful and en-
forced it would have the necessary consequence of forcing
Frouge to cease doing business with the fabricators of doors.
The statute appeared to proscribe any object of this nature in
explicit terms. This sufficed for the dissenting justices to find
the clause unlawful. The majority, however, viewed the legis-
lative history as requiring a less literal interpretation. The
basic purpose of Section 8(b)(4) and 8(e) was viewed as pro-
tecting neutrals against involvement in a- dispute not their
own, but the majority felt this should not be construed to
mean that a union must forego its right to bring pressures
against the primary employer directly involved in the dispute.
The fabrication clause in Frouge's contract was viewed as
having as a basic purpose preservation of traditional work
which had been done by Frouge's employees at the jobsite.
Section 8(b)(4) and 8(e) was not to be viewed as protecting
an employer against pressures where the pressures were
aimed at protecting traditional work of this nature,_ even
though exercise of such pressures had the collateral second-
other person, or forcing or requiring any other employer to recognize
or bargain with a labor organization as the representative of his em-
ployees unless such labor organization has been certified as the repre-
sentative of such employees under the provisions of section 9: Pro-
vided, That nothing contained in this clause (B) shall be construed to
make unlawful, where not otherwise unlawful, any primary strike or
primary picketing;
* * * * *
(D) forcing or requiring any employer to assign particular work to
employees in a particular labor organization or in a particular trade,
craft, of 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;
* * * *
(e) It shall be an unfair labor practice for any labor organization and
any employer to enter into any contract or agreement, express or in-
plied, whereby such employer ceases or refrains or agrees to cease or
refrain from handling, using, selling, transporting or otherwise dealing
in any of the products of any other employer, or to cease doing business
with any other person, and any contract or agreement entered into
heretofore or hereafter containing such an agreement shall be to such
extent unenforceable and void
ary effect of causing the employer to cease doing business
with another person. Such effect was to be viewed as an
incidental consequence, and not as a limitation on pursuit of
the primary right to preserve traditional work. The clause
was therefore held to be a lawful work preservation clause,
and union pressures to enforce it likewise lawful.
The National Woodwork holding, however, was limited in
scope. As noted above, Frouge was not required by any con-
tractual arrangement with his general contractor to use pre-
fabricated doors. He had the power to give the jobsite fabrica-
tion to his own employees, and that is all they sought. The
Court stated specifically that it was not passing on a situation
where a contractor did not have "control" over the work a
union sought to preserve for its members. The Court also
noted that determination of a work preservation object was
not something casually made, but rather, something demand-
ing careful inquiry. In this connection, the Court said:
The determination whether the "will not handle" sen-
tence of Rule 17 and its enforcement violated § 8(e) and
§ 8(b)(4)(B) cannot be made without an inquiry into
whether under all the surrounding circumstances, the
Union's objective was preservation of work for Frouge's
employees, or whether the agreements and boycott
were tactically calculated to satisfy union objectives
elsewhere. Were the latter the case, Frouge, the boycot-
ting employer, would be a neutral bystander, and the
agreement or boycott would, within the intent of Con-
gress, become secondary. There need not be an actual
dispute with the boycotted employer, here the door
manufacturer, for the activity to fall within this cate-
gory, so long as the tactical object of the agreement and
its maintenance is that employer or benefits to other than
the boycotting employees or other employees of the pn-
mary employer, thus making the agreement or boycott
secondary in its aim. The touchstone is whether the agree-
ment or its maintenance is addressed to the labor relations
of the contracting employer vis-a-vis his own employees.
This will not always be a simple test to apply. But "how-
ever difficult the drawing of lines more nice than
obvious, the statute compels the task." [Emphasis
supplied.]
In a footnote, the Court in referring to the "surrounding
circumstances" indicates that such ; "might include the
remoteness of the threat of displacement by the banned prod-
uct or services, the history of labor relations between the
union and the employers who would be boycotted, and the
economic personality of the industry."
Unlike Frouge, the Butte contractors could not control the
type of house that would be put on a jobsite. The purchaser
engaged a contractor to build a foundation or do certain work
on a structure he brought to the jobsite. If it were a modular
house, the purchaser had selected it from the group available
from the manufacturer, and the latter had determined the
state of completion in which the house was sent to the jobsite.
As we have seen, the Summit Valley and Boise Cascade
houses were delivered with much of the article XXII work
already completed. Thus the case before us falls in an area
which the Supreme Court did not pass upon in National
Woodwork We must therefore consider whether this control
circumstance calls for a different result either with respect to
CARPENTERS, LOCAL 112 915
"entering into" a contract with a work preservation clause,
or in relation to its enforcement. There has been considerable
post National Woodwork litigation centering on enforcement
of work preservation clauses where the contracting employer
had no right to control. The Board position in this area is now
well established. Accordingly, we will treat with that phase
of the problem first.
1. The alleged 8(b)(4)(B) violation
In the cases following National Woodwork where the con-
tractors have had no right to control the products coming to
the jobsite the Board has consistently found pressures to
enforce work preservation clauses to be conduct violative of
Section 8(b)(4)(B). The Board has reasoned that in such
situations the contracting employer was not really the pri-
mary employer, because he was powerless to grant the union
demand. Therefore he must be deemed a neutral, and the
union's efforts secondary. The demand could only be met by
having the manufacturer or supplier either cease to do busi-
ness altogether with the contractor, or change his mode of
operation to accord with the union requirement. Pressure to
attain either result was viewed by the Board as a proscribed
secondary object.
This approach was not accepted by courts of appeal in
some circuits.' The reasoning of these courts centered on
their view that after National Woodwork it became improper
for the Board to regard a contracting employer's right of
cont rol as sufficient in and of itself to make him a neutral in
the dispute. In Local 742 Carpenters, the Court of Appeals for
the District of Columbia expressed its views as follows:
The Board's test flies in the face of National Woodwork
in three respects: (1) It elevates one circumstance-
where the immediate "control" lies- to per se status,
rather than evaluating "all the surrounding circum-
stances." More than mere form is at stake here. The
Supreme Court properly recognized that realistic assess-
ment of the union's objective in a particular situation
is a complex, subtle matter and must depend on a variety
of evidential factors. A mechanical per se rule simply can-
not sift and weigh the evidence with the required sensi-
tivity. (2) A more basic failing of the "right to control"
test under National Woodwork is that it focuses on
entirely the wrong set of circumstances. It is concerned
solely with which party presently has the power to satisfy
the union's objective, rather than focusing on the sub-
stance of the object itself. Thus it misses the point of the
primary-secondary distinction as set forth in National
Woodwork. (3) And more particularly, the Board's test
fails to evaluate the substance of the union's objective
by looking to see whose labor relations it is addressed to.
That is the crucial matter under National Woodwork.
If the union's grievance has to do with some third party's
relations with his employees, the pressure it exerts against
' NLRB v. Local Union 164, LB E. W., 388 F.2d 105 (CA 3, 1968),
Local 636, Plumbers Union, (Mechanical Contractors Association ofDe-
troet) v N.L.R B, 340 F.2d 906 (C.A D.C„ 1970); American Boiler Manu-
facturers Association v. N.L RB, 404 F 2d 556 (C.A. 8, 1968); Local 742
Carpenters Union (J.L Simmons Co.) v N.LR B , 444 F 2d 895 (C.A.D.C.,
1971)
its members' employer may well be secondary. But
National Woodwork makes clear that, if the grievance
has to do with the labor relations of the pressured em-
ployer with his own employees who are exerting the pres-
sure, then the activity is probably primary and permissible
under Section 8(b)(4)(B). The Supreme Court has held
that an objective of preserving traditional work for the
union's members with the pressured employer is definitely
primary. The fact that the employer may have to cease
doing business with another party to satisfy the union's
demand is a permissible ancillary effect. Of course,
there may be cases where the union's objective is not
clearly, or only partly, to preserve its members' work.
But the per se "right to control" test would declare an
activity to be secondary without any inquiry whatever
into such matters.
In the instant case full acceptance of the rationale of these
cases could lead to a holding that the execution and enforce-
ment of article XXII was lawful. The Board, however, has
expressed continuing disagreement with the approach taken
by these courts. At the present time, the Court of Appeals for
the Fourth Circuit has upheld the Board in its approach to
the problem. The Board case in which its view has been most
fully explicated is Local No. 438, Plumbers Union (George
Koch Sons) 201 NLRB 59 (1973), herein called Koch. Since
it is the Board's view that governs disposition of the issues
here, we must take a somewhat detailed look at the Board's
approach in Koch, and then consider its applicability to the
circumstances which confront us.
George Koch & Sons had a contract to manufacture and
install certain industrial finishing systems in a General Elec-
tric Company plant. The contract ,with General Electric
called for certain of the pipes to be prefabricated and pre-
tested before being installed. Koch subcontracted the installa-
tion of all pipe at the General Electric plant to Phillips
Plumbing & Heating Co. Phillips had a contract with Re-
spondent union which provided, in substance, that all pipe
used on the job had to be cut and threaded by union members
at the jobsite. The Board conceded that the contract clauses
"are valid work preservation clauses and that to their actions
alleged as violations here, the Respondents were motivated by
work preservation aims . . ." When Koch shipped prefab-
ricated pipe to the plant to be installed by the Phillips em-
ployees, the latter were instructed by their union to refuse to
do the work because the prefabricated pipe did not meet the
contractual requirement calling for jobsite cutting and
threading. This conduct resulted in the filing of 8(b)(4)(B)
charges. The Board found the conduct-violative of the Act.
In its decision, the Board noted that Phillips, in contrast
to Frouge in National Woodwork, had no control over the
type of pipe he was to install. The contract between Koch and
General Electric specified that in certain areas prefabricated
pipe was to be installed. The work on such pipe had already
been done when it reached the plant. Thus Phillips was pow-
erless to assign the cutting and threading of such pipe to his
own employees. The Board concluded that although a union
might legitimately enforce work preservation clauses in situa-
tions like that in National Woodwork, it was, foreclosed from
doing so where the contracting employer had no power to
award the work sought to be preserved. The Board reasoned
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that although the union may have been initially motivated by
a work preservation aim in seeking the contract clause, it was
now bringing pressure in a situation where the particular
employer was incapable of acceding to the union demand.
Since the pressured employer, even though also the contract-
ing employer, could not give the union the work, his position
became in effect that of a neutral. The Board stated:
Since it was impossible for the pressured employer to
itself accede to Respondent 's actions but not impossible
for another to award this work , and since we have
deemed it reasonable to view the object of the Respon-
dent's actions not as an impossible act, but as the possi-
ble alternative, we have found that the Respondent's
actions were undertaken for their effects elsewhere, and
that the pressured employer, here Phillips, was a second-
ary. Since Phillips was a secondary here, and since the
Respondent's actions did have as an object the causing
of Phillips to cease doing business with Koch , the Re-
spondent 's actions here violated Section 8(b)(4)(B) of the
Act.
The Board went on to note that in finding the violation of
Section 8(b)(4)(B) it was not passing on the Union's right to
bring a civil suit for breach of contract. The Board further
undertook to comment upon the scope of its disagreement
with certain courts of appeal which had had occasion to pass
on cases involving a right to control issue. The Board denied
that in considering cases of this nature it had ever looked
solely at the pressured employer's right to control. In this
connection the Board stated:
Rather, the Board has always proceeded with an analysis
of (1) whether, under all the surrounding circumstances,
the union's objective was work preservation and then (2)
whether the pressures exerted were directed at the "right
person, i.e., at the primary in the dispute. For the rea-
sons set forth, supra, we think this approach fully con-
forms with National Woodwork and is in fact compelled
by Section 8(b)(4)(B). In following this approach, how-
ever, our analysis has not nor will it ever be, a mechani-
cal one, and in addition to determining, under all the
surrounding circumstances, whether the Union's objec-
tive is truly work preservation, we have studied and shall
continue to study, not only the situation the pressured
employer finds himself in, but also how he came to be
in that situation. And if we find that the employer is not
truly an "unoffending employer" who merits the Act's
protection, we shall find no violation in the Union's
pressures such as occurred here, even though a purely
mechanical or surface look at the case might present an
appearance of a parallel situation. The evidence shows,
however, that here Phillips was anunoffending employer
and that by threatening to refuse and by refusing to
install the prefabricated pipe for Phillips, the Respond-
ents violated Section 8(b)(4)(B) of the Act.
The Board's decision was reviewed by the Court of Appeals
for the Fourth Circuit, and on December 14, 1973, that court
in George Koch & Sons, Inc. v. N.L.R.B., 490 F.2d 323, issued
a decision fully upholding the Board. By way of further ex-
plication and support, the court stated the following:
The decisive question, therefore, is whether in the light
of "all the surrounding circumstances" the agreements
and boycott between Phillips and the unions were "tacti-
cally calculated to satisfy union objectives elsewhere."
We think the Board was right in concluding that they
were.
To begin with, since the unions were aware of the
conditions in the Phillips-Koch pact, they knew that
Phillips did not have control of the pipe fabrication.
Consequently, their enforcement of the collective bar-
gaining terms evinces the union's intention to press their
objectives "elsewhere" other than upon Phillips.
Moreover, Koch and the unions were not in privity;
neither was bounden to the other: Koch, then, was a
neutral, and yet with regard to it the unions still sought
to prosecute the conditions in order to "satisfy the union
objectives" beyond Phillips. This, too, is precisely-
and even more emphatically-the posture of the unions
with respect to G.E. To repeat, these facts confirm the
Board's findings of the tactical effect.
These conclusions are not gainsaid or diminished by
the unions' insistence that the stipulations are enforcea-
ble as work preservation measures. The Board did not
nullify the clauses as work preservation assurances; they
remained available for appropriate application. How-
ever, regardless of their initial intendment, they could by
undue extension, over and above the Phillips-employee
relationship, lead to violations of Section 8(b)(4)(B) of
the Act.
That the clauses have been so exerted in this instance
is, it appears, precisely the illegality the Board perceived
in the unions' actions. Like the Board, we see Phillips as
not an "offender" but rather a neutral vis-a-vis its em-
ployees; therefore the effect of the strike was to compel
Phillips unlawfully "to cease doing business with any
other person." Granted, the efficacy of work preserva-
tion covenants is not to be stunted because of the severity
of their impact . . . . Nevertheless, if a result of that
pressure is to cause a neutral employer [here Phillips] to
terminate his business with another [Koch], then such
enforcement fouls the Act.
The court went on to point out that its decision did not give
an employer license to contract out work without limitation.
The court indicated that if there was any element of conniv-
ance or complicity in which the employer was seeking to
'avoid its obligations toward the union, then a different result
would be reached. However, in the instant case, there was a
contract between Koch and General Electric that controlled
the type of pipe that was to come to the jobsite, and Phillips
did not surrender his right to control for he never had any.
Although we will consider below the lawful nature of the
work preservation clause itself, the 8(b)(4)(B) violation
within the Koch rationale does not depend on that determina-
tion. As noted above, the clause was not specifically attacked
in Koch. Koch includes an express finding that the parties had
a lawful work preservation clause in their contract.
In Koch we had Phillips bound by a contract with a work
preservation clause requiring certain traditional work to be
done at the jobsite. The Butte contractors are also bound by
a contract with Respondent Carpenters with a work preserva-
CARPENTERS, LOCAL 112
tion clause requiring that certain traditional carpenters' work
be done at the jobsite by employees of the contractors. Phil-
lips had no control over the pipes to be delivered to the jobsite
for installation. Koch's contract with General Electric deter-
mined that some of the pipes were to be brought in a prefab-
ricated state. The purchasers of modular houses engaged
Butte contractors to install foundations or perform certain
work on these houses after they had been placed on founda-
tions. The Butte contractors had no control over the type of
house to be placed on the foundation, or the condition in
which such house would arrive at the jobsite. Summit Valley
and Boise Cascade sold only completed modular houses with
much of the work noted in article XXII already finished. In
Koch, the union refused to let Phillips' employees install the
prefabricated pipe, relying on the provisions of their work
preservation clause. In the instant case, Respondent Carpen-
ters brought pressures against the contractors and their em-
ployees to refuse to work at all on Summit Valley or Boise
Cascade Modular houses unless and until the employees were
given all the article XXII work. There was no way whatso-
ever that Phillips could give his employees the onsite pipe
work. In response to union pressure, Phillips could do no
more than attempt to persuade Koch or General Electric to
change the basic format and give him nonfabricated pipe to
install. If this were not possible, Phillips could only meet the
pressure by ceasing to do business altogether with Koch at
the General Electric project. There was no way that the Butte
contractors could give the onsite carpentry work required by
article XXII to their employees. They could respond to the
union pressure only by seeking to persuade Summit Valley or
Boise Cascade-to bring houses to the jobsite in the condition
which article XXII required, or else by ceasing to do any
work. on Boise Cascade or Summit Valley houses whatsoever.
As in Koch, there is no showing in the instant case that the
contractors surrendered any right to control this work assign-
ment for they never had had it. The union in Koch was
apparently aware that Phillips had no control over the type
of pipe which was to come to the jobsite. Respondent Carpen-
ters must also have been aware that the contractors did not
control the condition in which Boise Cascade or Summit
Valley houses were shipped to a jobsite.
Under the circumstances, I see no difference in substance
between the 8(b)(4)(B) issue presented to the Board in Koch
and that before us in the instant case. Accordingly, I must
conclude, as the Board did in Koch, that even assuming the
work preservation clause to be valid and Respondent Carpen-
ters to have been motivated by a work preservation aim, it,
like the union in Koch, undertook to achieve its ends by the
unlawful means of bringing pressures against contractors
who were incapable of acceding to their demands. As in Koch,
and for essentially the same reasons, this conduct must be
regarded as having been undertaken for its effects elsewhere,
and the pressured employers must be deemed neutrals enti-
tled to the protections of Section 8(b)(4)(B). Accordingly, I
find that with regard to the various pressures heretofore
found to have been directed against the contractors or their
employees, Respondent Carpenters was undertaking to cause
such contractors to cease doing business with Boise Cascade,
Summit Valley, their agents or dealers, unless or until such
employers changed their operations to conform to article
XXII, and that such pressures pursued for such a proscribed
917
object constitute conduct violative of Section 8(b)(4)(i)( ii)(B)
of the Act.
Having found Respondent Carpenters pressures against
the Butte contractors to be unlawful within the Koch ra-
tionale, there remains the question of whether a similar result
follows with regard to the pressures directed against McLeod,
Lemmons, the Boise Cascade employees, and Summit Valley.
Koch tells us that the Butte contractors, like Phillips, are
neutral employers, protected from pressures when they find
themselves in a situation in which they are powerless to meet
the Union's demands. The pressures against McLeod, the
Boise Cascade employees and Summit Valley,_ even though
having the same underlying work preservation aim, arise in
a different context. Unlike the Butte contractors, Boise Cas-
cade and Summit Valley could change their mode of opera-
tion and could manufacture and deliver houses which would
leave the article XXII work for the jobsite carpenters. It is a
fair assumption that in asking McLeod, the Boise Cascade
dealer, to sign a contract with article XXII, Cadigan was
pursuing another means of pressing Boise Cascade either not
to send its modular houses to the Butte area, or, if doing so,
to bring them in with the article XXII work still to be done
at the jobsite. A similar aim seems likely with regard to the
direct pressure Cadigan brought to bear on Lemmons and the
Boise Cascade employees. Likewise, the picketing of Summit
Valley was designed in part to press that employer, either to
deliver the houses to the jobsite in a condition which con-
formed to article XXII or else not to deliver them in the Butte
area at all. Unlike the Butte contractors, however, neither
Boise Cascade, Summit Valley, Lemmons, nor McLeod had
ever had a contractual relationship with Respondent Carpen-
ters covering any work to be done by their employees. To the
contrary, Cadigan expressly disclaims interest in representing
plant employees of either Boise Cascade or Summit Valley,
while McLeod is a Butte realtor who has never directly em-
ployed carpenters.
Underlying National Woodwork is the concept that a union
may protect traditional unit work of employees who are
working for a particular employer. Necessarily this envisages
the existence of an established bargaining relationship be-
tween the union and the employer, or there will be nothing
that can be preserved. In Koch the Board carried the concept
a step further holding the union, in effect, had no work to
preserve when the employer, without connivance or com-
plicity, was unable to give his employees the work because of
circumstances beyond his control. If in a Koch situation the
pressures against a contracting employer be deemed second-
ary, similar pressures directed against a noncontracting em-
ployer present an a fortiori situation. Although the latter,
unlike the former, might not be powerless to meet the union's
demands, the pressure against him can scarcely be viewed as
having a primary work preservation object, because no bar-
gaining unit or bargaining relationship exists. The pressure is
thus not addressed to the "labor relations of the contracting
employer vis-a-vis his own employees" but must be seen as
"tactically calculated to satisfy union objectives elsewhere"
and therefore as secondary. The pressures here that were
directed against the noncontracting employers may reasona-
bly be viewed as having an object of forcing or requiring them
either to bring houses into the Butte area with article XXII
work still to be done, or to cease bringing them in altogether.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Either alternative would be a proscribed object. Accordingly,
I find that by such pressures Respondent Carpenters has
engaged in conduct violative of Section 8(b)(4)(i)(ii)(B) of the
Act.9
2. The allegation that entering into article XXII was
violative of Section 8(e) and 8(b)(4)(A)
The initial charges were limited to alleging violations of
Section 8(b)(4)(B) and 8(b)(4)(D) by conduct relating to the
enforcement of article XXII. The` 8(e) and 8(b)(4)(A) charges
filed by the Chamber were made at a considerably later date.
The General Counsel and the charging parties urge that the
record supports a finding that "entering into" a contract with
article XXII is violative of the latter two sections. The Car-
penters regards the lawful nature of the clause itself as al-
ready resolved by the Silver Bow case. The Chamber consid-
ers the 8(e) and 8(b)(4)(A) violations as the central issue in
this proceeding. The Chamber undertook to adduce consider-
able testimony both through experts, and by others, to sup-
port its contentions, and made an elaborate and able presenta-
tion in its brief on the issues.
The Chamber notes that the Supreme Court in National
Woodwork stated that resolution of a work preservation issue
"cannot be made without an inquiry into whether, under all
the surrounding circumstances, the union's objective was
preservation of work . . . or whether the agreements and
boycott were tactically calculated to satisfy union objectives
elsewhere." The Chamber argues that such inquiry is re-
quired because National Woodwork makes it clear that in
sanctioning a work preservation clause, the Court is not in-
sulating every contractual work restriction against an 8(e)
ban. The underlying purpose of Section 8(e) and 8(b)(4) is to
limit the area of dispute to the primary disputants, and to
avoid involving others therein, or disturbing business rela-
tionships a disputant may have with others. A work preserva-
tion clause, even where found lawful, necessarily has an inci-
dental "cease doing business effect." This demands careful
scrutiny of the "surrounding circumstances" whenever work
preservation is claimed to make sure that the clause itself has
a true work preservation object, and does not represent a
subterfuge or a pretext covering an object elsewhere. The
Chamber notes that in defining the "surrounding circum-
stances" the Supreme Court stated that such "might include
the remoteness of the threat of displacement by the banned
product or services, the history of labor relations between the
union and the employers who would be boycotted, and the
economic personality of the industry." The Chamber con-
tends that to approach the issue in any given case we must
evaluate a union's conduct by considering the foreseeable
9 To the extent the Board's decision in Bricklayers Local 8 (California
Concrete Systems), 180 NLRB 43 (1969), appears inconsistent with this, I
regard the rationale expressed therein as having been superseded by the
more fully expressed rationale in the Koch case In California Concrete
Systems the Board indicated that a union might lawfully picket a general
contractor who had control of sending in the prefabricated item, even
though precluded from picketing the contracting employer who did not have
such control Although the Board did not deal directly with pressures di-
rected against a noncontracting employer in Koch, for reasons which have
been set forth above, I view the more fully explicated rationale in Koch with
regard to work preservation cases as superseding any seemingly contrary
expressions in California Concrete Systems. I believe the view which I have
adopted above to be more consistent with the Koch rationale.
consequences of its demand. It is urged that, in determining
whether its efforts to obtain a work preservation clause are
bona fide and not "tactically calculated elsewhere," the
proper test is one that involves objective considerations and
does not depend upon any subjective hope or desire of the
union. The Chamber defines its objective test as "one which
deduces an unlawful objective from the foreseeable impact of
the union's conduct without regard to the `union's subject
belief or motivation in securing the clause." While the Cham-
ber would not ignore subjective considerations, or any evi-
dence relating to a union's expressed purpose in seeking a
work preservation clause, it would not regard such considera-
tions as controlling in the face of objective circumstances.
Principal reliance would be placed on evidence relating to
"the economic personality of the particular industry" and the
"remoteness of the threat of displacement of the banned prod-
uct or services. . . ." The Chamber's claim in this regard is
expressed in the following language from its brief:
Incorporation' of these criteria clearly manifests an in-
tention that among "the circumstances" to be consid-
ered in determining the legality of such clauses is a rela-
tive assessment of the probable impact of the clause upon
the industry targeted for boycott against the "threat of
displacement [of workers' jobs] by the banned product
or services." Thus, if the threatened impact on jobs is
slight as compared with the substantial impact on the
producing industry, the clause will be considered as
"tactically calculated to satisfy union objectives else-
where." Conversely, if the "foreseeable consequences of
the [clause upon the industry] while disruptive [is]
slight," but the threatened impact upon jobs is substan-
tial, the clause will be considered "primary"`absent other
indicia demonstrating an ulterior, unlawful secondary
object.
The Chamber interprets the term "surrounding circum-
stances" to cover an exceedingly broad spectrum which
would not only cover the situation in the local Butte area, but
also would embrace the construction industry in the United
States as a whole. Evidence both from experts and others was
received with regard to the Butte area and appears in the
record in some detail. The undersigned, however, refused to
receive detailed expert testimonial and documentary evidence
relating to the national construction industry in the belief that
studies relating to prefabricated houses and restrictive union
practices generally, were not sufficiently closely related to the
particular issues in this proceeding, and were more properly
addressed to a legislative than to a judicial tribunal.10
Before considering the contentions of the Chamber regard-
ing the validity of its objective test we must first examine the
assertions of Respondent Carpenters regarding its ostensible
to On April 25, 1974, the Chamber filed with me a motion for leave to
file renewed request to Administrative Law Judge to reconsider prior rulings
rejecting Chamber's Exhs 10(b) and 19 While such late request may prop-
erly be viewed as untimely, it has been fully considered. I am of the opinion
that it raises nothing not heretofore fully considered that would serve to
alter any of the findings herein or rulings heretofore made. Accordingly,
although the request is granted to the extent of having given further recon-
sideration to the prior rulings, it is hereby denied insofar as receiving in
evidence Exhs 10(b) and 19 is concerned.
I
CARPENTERS, LOCAL 112 919
work preservation aims at the time it first voiced them and
the posture of the case when the current charges arose.
The interest of Respondent Carpenters in possible prob-
lems arising from the entry of modular houses into the Butte
area goes back to 1969 and the Bender case. The concern
expressed by all union representatives in Bender, and in par-
ticular by Cadigan, clearly related to a fear that the arrival
of fully built houses in the Butte area would diminish the
amount of traditional craft work available to the Butte
unions. Cadigan stated that in resisting the arrival of prebuilt
houses, "we are protecting the work of the people we are
representing." Interstate, the manufacturer involved in
Bender, was nonunion, and while Cadigan and other union
representatives made statements indicating an awareness of
this, the nonunion status of Interstate's employees does not
stand out as the real problem which prompted the pressures.
The Board's findings as a whole make it clear that the thrust
of the union objectives in Bender centered not on that fact,
but on the fear of loss of work by local union members. As
we have seen, the Board found the union pressures unlawful
because they had an object of forcing or requiring the Butte
contractors to cease doing business with Bender or requiring
Bender to cease doing business with Interstate. Pressures
brought against the contractors were deemed unlawful fol-
lowing the same theory upon which I have found similar
pressures-against the contractors to be unlawful in the instant
case. I do not view the case as a holding, however, that in
1969, the Carpenters necessarily was engaged in pursuit of an
object other than work preservation.
It was noted by the Board in Bender that at that time none
of the unions involved had a work preservation clause in its
collective-bargaining contract. It is questionable that exist-
ence of such a clause would have affected the result, since the
Board speaks of Bender as being "powerless to meet" the
demands, and of the unions' using "proscribed means" to
keep out the Interstate houses. Nevertheless, when Respond-
ent Carpenters contract came up for renewal shortly after the
Board's decision in Bender, Respondent Carpenters deemed
it desirable, and probably necessary, if it were to meet Na-
tional Woodwork requirements, to negotiate a contract con-
taining a work preservation clause. The Carpenters 3-month
strike for article XXII was the subject matter of Silver Bow.
The Carpenters initial work preservation proposal in the
negotiations was more extreme than that finally embodied in
article XXII. The Butte contractors had objected that the
initial proposal would have the effect of preventing any
modular houses whatsoever from entering the Butte area.
The Board found Respondent Carpenters "consistently mam-
tained that it was not interested in boycotting any product,
including modular homes, whether union made or otherwise,
but was only seeking to preserve the work historically and
traditionally done by its member carpenters, employees of the
contractor members ...." Objections were also made that
initial proposals would even keep out "precut" items which
had I heretofore been accepted. The Board found Respondent
Carpenters had disclaimed such an intent, and expressed its
aim as only "to prevent further erosion of their members' unit
work. by the subcontracting of additional tasks currently and
traditionally performed by the carpenters." Subsequently
during the course of negotiations, Respondent Carpenters
rejected a counterproposal of the Butte contractors limiting
the application of the proposed work preservation clause to
situations where "the exclusive right to control the type of
structure erected at the site of construction rests in a person,
f i r m or corporation not a party to this agreement g r e e m e n t . It
was following this that article XXII in its present form was
accepted. The Board made a further finding to the effect that
representatives of four modular house manufacturers had
signified that it would be possible for manufacturers to supply
unfinished houses with the article XXII work to 'be done at
the jobsite. With one exception however, all the manufactur-
ers signified they were disinterested in doing so. As we have
seen, the Board found article XXII to be lawful within the
meaning of National Woodwork stating among other things
that the "fact that Respondent was willing to modify its
original proposal to liberalize it in several respects, so long as
its objective of work preservation was retained, demonstrated
Respondent's good faith in seeking only work preservation as
distinguished from tactical objectives elsewhere, including
product boycotts." Admittedly, however, the Board was not
confronted with a right to control situation since at the time
no effort had been made to enforce the provisions of article
XXII.
The General Counsel and the charging parties assert in this
proceeding that Silver Bow does not preclude further consid-
eration regarding the validity of article XXII. I would agree
that the decision does not make the matter res judicata or
create a collateral estoppel. The Silver Bow decision can
scarcely be ignored altogether, however. The Board had
before it the full text of article XXII, the background against
which it arose, and the negotiations which led to its accept-
ance. It is a fair assumption that the good-faith aims of Re-
spondent Carpenters as they existed at the time and the true
object it pursued were fully litigated. The timing of the case,
of course, prevented any consideration as to what effects, if
any, later enforcement efforts would have, or any considera-
tion of events which occurred subsequent to the litigation. I
am satisfied, however, that it is a fair assumption that up to
the time of the Silver Bow hearing, Respondent's true object
was pursuit of a work preservation aim, and that theretofore
it had engaged in no conduct which can be construed to
support a conclusion that in seeking and initially obtaining
article XXII, it was pursuing a proscribed object.
There remains the question of whether the picture changed
when Respondent Carpenters commenced enforcement of ar-
ticle XXII in a manner which heretofore f have found unlaw-
ful. Also whether other subsequent events or the application
of an objective test demands a finding that maintaining and
enforcing article XXII constitute anew "entering into" that
is unlawful.
The Chamber views article XXII as having the foreseeable
consequence of making it all but impossible to market Sum-
mit Valley and Boise Cascade houses in the Butte area. With-
out a means of constructing foundations and doing needed
stitching, modular houses cannot be sold there. If Butte con-
tractors are forbidden to do this work, the Butte area must
be abandoned as a market unless the manufacturers are pre-
pared to bring in unfinished houses conforming to article
XXII. They regard this as impractical and uneconomical.
While this "cease doing business" effect is viewed as having
a "substantial adverse impact on the producing industry," the
Chamber recognizes that such might still be deemed an mci-
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dental effect of a true work preservation object. Thus the
central thrust of the Chamber's claim is that an objective
evaluation-of other circumstances indicates that a "relative
assessment" of this "substantial adverse impact" on the in-
dustry against the "threatened displacement [of workers'
jobs]" by the advent of modular houses shows the likelihood
of the displacement to be so slight that the true object is
properly considered as "tactically calculated to satisfy union
objectives elsewhere."
The Chamber notes the ostensible purpose of article XXII
is to preserve employment opportunities for carpenters. The
Union pressing for it apparently views modular houses com-
ing into the area as likely to cause a loss of such opportunities.
This conclusion rests on the assumption that the onsite work
on a fully finished modular house requires fewer man hours
by carpenters than the same house if stickbuilt would require.
Thus, an influx of modular houses into the Butte area is
viewed as reducing the overall work left for carpenters, and
article XXII is addressed to obviating such a result. The
Chamber challenges this line of reasoning as having no more
than a superficial appeal, and claims that it actually rests on
a false premise. To support this, the Chamber asserts that an
objective economic analysis of the probable effects of the
entry of modular houses does not show that in the long run
carpenters' jobs will be reduced at all, but on the contrary,
that such economic analysis establishes that the long-range
result will be increased job opportunities not only for carpen-
ters but also for workers in the Butte area generally. It is
argued that a union pressing for article XXII and responsible
for the foreseeable consequences of its conduct, must be
charged with responsibility of properly evaluating the eco-
nomic effects of its conduct, and that, where such analysis
shows jobs will not in fact be preserved, it is proper to infer
that the union has an object "elsewhere."
Extensive testimonial and documentary evidence was re-
ceived relating to the "relative assessment" issue and the
"economic personality" of the industry. In substantial mea-
sure, this has been outlined above. In addition to evidence
relating to the production of modular houses as contrasted
with stickbuilt houses, the area labor relations history, and
other matters, there is considerable testimony from experts
and others relating to the housing needs in Butte, together
with economic analyses of past employment in the area, and
projections with regard to future employment. The Chamber
pressed for the introduction of even more elaborate economic
data which related to -a variety of economic factors dealing
with the construction industry nationally. Proffered expert
testimony, which appeared to have a national orientation as
contrasted with a more direct relationship to the situation in
the Butte area, was rejected."
ii Horace J DePodwm and Glenn Meyers, two highly qualified econo-
mists , had prepared studies of broad scope regarding the functioning of the
construction industry in the United States as a whole. The principal study
was entitled "The Economic Personality of the Construction Industry and
the Need for Technological Change." This was an elaborately documented
and scholarly treatise dealing with such items as the severe national housing
shortage attributable to meet construction needs, and the fact that many of
these problems came about because the construction industry was an an-
tiquated one resisting innovations and permitting restrictive work practices.
The study suggests industrialized housing to be a factor of great promise in
cost reduction, since it brings about a far more efficient utilization of the
work force The study goes on to supply data purporting to signify that such
The factors in the record upon which the Chamber relies
to support its so-called objective test include the following:
(1) Modular houses do not serve as a substitute for stickbuilt
houses. There is an apparent demand for houses in the Butte
area in the $18,000 to $25,000 price range, and it is impossible
to market stickbuilt houses for less than $25,000. Therefore-
modular houses will not be competing with stickbuilt houses
but will fulfill a market need not now being met. (2) Some 100
modular houses came into the Butte area in the year immedi-
ately preceding the hearing. This represented some 30 percent
of the houses built in the area. During the same period there
was no slowing of unemployment among carpenters but, on
the contrary, it appears there was a 20-percent increase of
membership in the Carpenters. (3) The manufacture of
modular houses brings a new industry to Butte, an area whose
history shows relatively scant growth. The jobs in the new
industry give added income to residents which should have
a beneficial effect in creating jobs for construction workers
and others. Adherence to restrictive practices would on the
contrary eliminate such an industry and contract the job
market. (4) General economic theory applicable to Butte and
elsewhere shows resistance to technological change to be un-
feasible and generally counterproductive in the long run with
respect to employment expansion even among the group
pressing for it. And finally, (5) the work preservation concept
itself rests on faulty economic predicates and whether applied
in the Butte area or elsewhere it will not increase productivity
or employment opportunities.
While the Chamber regards these objective considerations
alone as sufficient to support a finding of a proscribed object,
it joins with the General Counsel in asserting that Carpenters
enforcement efforts and other conduct also evidence pursuit
of such object.
The enforcement incidents have been described above, and
I have found that directed as they were against contractors
powerless to comply, or against- others not in privity of con-
tract, the means of enforcement sufficed to show a proscribed
industrialization promises an extremely favorable effect upon employment
in the building trades, noting that many unions have accepted this as a fact
and are working toward it DePodwin and Meyers find that, so long as
virtually all construction must be performed at the jobsite, growth of low cost
housing will be restricted, and that this will have an adverse effect upon the
very workers who undertake to impose such restrictions. This study and the
supportive testimony of the economists who had prepared it was rejected
primarily because it was not believed necessary to evaluate economic con-
siderations on so broad a spectrum in order to resolve the issues with which
we are immediately concerned. It was further believed that to permit the
introduction of such matters would needlessly expand the record in a man-
ner not required to reach a decision on the issues. In addition, it was felt that
in substantial measure the economic data covered by this study was of a
nature more appropriately directed to a legislative than to a judicial tribunal
For similar reasons, an additional paper entitled "A Theoretical Analysis of
the Work Preservation Concept" prepared by the same economists was also
rejected. An interim appeal was taken from my rejection of this proffered
economic material The ruling was initially sustained, but, after the conclu-
sion of the hearing, a motion for reconsideration of the ruling on the appeal
was filed with the Board This motion was denied. The Chamber in its brief
now urges that I reconsider the matter, and reverse my earlier position
After giving careful consideration to the record as a whole, and to the
arguments of the Chamber, I am still satisfied that the economic data in the
record relating to the Butte area alone which, it may be noted does not
appear in conflict with the broader economic conclusions covered by the
studies, suffices to meet the mandate of National Woodwork regarding
"surrounding circumstances" and the "economic personality" of the indus-
try Accordingly, I reaffirm my rulings made at the hearing rejecting all
evidence purporting to have a national scope
CARPENTERS , LOCAL 112
secondary object. We have seen, however, by the holding in
Koch that such a result can be reached without invalidating
a work preservation clause. In view of this I do not regard the
unlawful enforcement means used here as per se tainting an
otherwise 'lawful work preservation clause. This result would
appear to follow with regard to enforcement pressures di-
rected at either contracting or noncontracting employers
since both were undertaken in pursuit of the same goal:
There remains the question, however, of whether, since the
hearing in Silver Bow, Cadigan, or any other Carpenters rep-
resentative, conducted himself in a manner which might sug-
gest an object other than work preservation.
Cadigan was specific and positive in his assertions that
Carpenters at no time pursued any object but preservation of
traditional jobsite work. He expressly denied interest inrepre-
sendting plant employees of either Summit Valley or Boise
Cascade. Cadigan was a forthright witness, and I credit both
of these assertions. I see nothing in his testimony suggesting
real concern with the organizational status of either manufac-
turer. Both plants were organized, with the Boise Cascade
plant employees represented by another local of Carpenters
International. Cadigan's references to modular houses as
"scab products"' or as "unfair" came in a context of at-
tempted enforcement of article XXII, and his approach as a
whole appears keyed to getting the article XXII work for the
Butte carpenters with little concern for incidental effects this
might produce. His references to these terms sound more in
the nature of off-the-cuff remarks made in the common trade
union vernacular than as expressions of a dual object. Consid-
ering the record as a whole I view Cadigan's general approach
to article XXII as evidencing a single-minded effort to further
a sincerely held conviction that the advent of modular houses
threatened employment opportunities of his carpenters.12 I
find no convincing evidence that in pursuing this course
Cadigan was not acting in good faith, or that he was using
such approach as a pretext to cover any other object.
3. Conclusionary findings as to violations of Section 8(e)
and 8(b)(4)(A)
The foregoing suggests that resolution of the 8(e) and
8(b)(4)(A) issues turns on an understanding of the true man-
date of the Court when it directed an inquiry into the "sur-
rounding circumstances." The Court is not specific on the
question of "surrounding circumstances." The suggested
considerations of "economic personality" or "threat of dis-
placement" help but little, because the Court gives no real
hint as to what these terms encompass. The Chamber seizes
on these two terms as the key to its "objective test." It views
the term "economic personality" as embracing a broad con-
cept of economic theory which must be considered in evaluat-
ing construction industry problems. Consideration thereof
leads it to a conclusion that resistance to technological ad-
vancement in the form of a work preservation clause like
12 It may be rioted that in the fall of 1972 Cadigan had good reason to
believe both art. XXII and its enforcement might be lawful. The initial Silver
Bow decision had issued . The Board had indicated that enforcement of such
a clause against a contractor without the right to control work assignment
was unlawful , but several courts of appeal had emphatically disagreed
Moreover, Koch, with its full explication of the Board 's view, had not yet
issued.
921
article XXII would not only hinder economic progress, but
also would not preserve the jobs at which it was aimed. It
asserts that the record sustains a conclusion that this very
result will be forthcoming in the Butte area should article
XXII be found lawful. The evidence relied on to support this
is the expert testimony of economists relating to such matters
as general economic theory, Butte housing needs, Butte popu-
lation growth, and carpenters' job experience in Butte during
the preceding year.
Of necessity expert testimony of this nature is in some
measure speculative, and involves educated guesses as to fu-
ture developments. I am satisfied that the Chamber's experts
are well qualified, and that their investigations, evaluations,
and predictions relating to the effect of article XXII and its
enforcement are likely to be correct. Assuming this to be true,
however, I am not convinced that Carpenters is properly
charged with 'knowledge of this as a "foreseeable conse-
quence" of its pursuit of an otherwise lawful work preserva-
tion object.
This objective test as a controlling factor can only be sus-
tained if we are justified in charging any union seeking a work
preservation clause with knowledge of its economic conse-
quences. The dissenting justices in National Woodwork saw
Congress as viewing any product boycott as producing un-
desirable economic consequences and thus all "cease doing
business" situations to constitute proscribed objects. The
majority, however, was considering a product boycott prob-
lem. Efforts to outlaw product boycotts generally center on
the theory that they are economically unsound, and in the
long run will have an adverse economic effect even on the
party who has been pressing for one. It is difficult to envisage
any product boycott situation which could successfully sus-
tain itself against this long-range argument of adverse eco-
nomic consequences. The Chamber's test would charge a
union with responsibility for knowing that adverse economic
consequences would flow from its pursuit of a work preserva-
tion clause. The test would then say that, possessing such
knowledge, continued pursuit of the clause could not be
viewed as having the sole object of work preservation, since
a union could not reasonably conclude that it would likely
preserve jobs. Therefore, the union's object must be deemed
as aimed elsewhere, and viewed as secondary and unlawful.
This is an approach that would have the practical effect of
making it all but impossible to pursue a work preservation
object even of the limited nature permitted by the majority in
National Woodwork. In substantial measure use of such an
objective test would achieve the end found by the dissenting
justices, but rejected by the majority. Moreover, regarding
economic consequences the majority in National Woodwork
spoke as follows:
The Woodwork Manufacturers Associations, and amici
who support its position, advance several reasons,
grounded in economical and technological factors, why
"will not handle" clauses should be invalid in all circum-
stances. Those arguments are addressed to the wrong
branch of government. It may be "that the time has
come for reevaluation of the basic content of collective
bargaining as contemplated by the federal legislation.
But that is for Congress. Congress has demonstrated its
capacity to adjust the nation 's labor legislation to what,
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in its legislative judgment, constitutes the statutory pat-
tern appropriate to the developing state of labor relations
in the country...."
Accordingly, contrary to the claim of the Chamber I am
satisfied that the Court's mandate is far more limited. The
majority recognized that the inevitable "cease doing busi-
ness" effect of its holding could lead to abuse. Therefore it
directed'careful scrutiny to insure that the lawful object was
pursued in good faith. The nature of the industry, the setting
in which the dispute arose, the bargaining history, and vari-
ous representations of union representatives were all "sur-
rounding circumstances" that would throw light on the
unions true object. Subterfuge or pretext might well be dis-
cerned from an examination of such factors. I am satisfied
that the Court's mandate is thus limited, however, and that
in any event it did not encompass an evaluation of the eco-
nomic consequences in the manner urged by the Chamber.
In the instant case for reasons more fully set forth above
I view neither the Carpenters initial pursuit of article XXII
nor its subsequent "entering into" or enforcement efforts as
sufficient to establish that the agreement itself has a pro-
scribed object. Accordingly I find that it has not been estab-
lished that "entering into" or maintaining article XXII is
conduct violative of Section 8(e) and 8(b)(4)(A) of the Act,
and I shall recommend that the allegations in this regard be
dismissed.
It must be noted, however, that the foregoing holding is
limited in scope. Nothing therein is to be construed as making
article XXII enforceable for all purposes. It is enforceable
only in situations which parallel that in National Woodwork
where the contracting employer has full control of the work
assignment. In all other situations where the contracting em-
ployer is powerless to award the work, or the pressure is
directed at a noncontracting employer or his employees, Car-
penters may not press for article XXII work within the ra-
tionale of the Koch case as set forth in the preceding section.
E. The Responsibility of Respondent Council for the
Alleged Unlawful Conduct of Respondent Carpenters
As noted above, Respondent Council had not been charged
with a violation of the Act prior to the issuance of the
amended consolidated complaint in May 1973. The hearing
opened on June 5, and after 3 days recessed until July 24. On
July 9, the Chamber amended its charge, and on July 20, the
General Counsel moved to amend the consolidated complaint
by alleging, in substance, that "on or about October 5, 1972"
Respondent Council "acting at the behest of and as agent" of
Respondent Carpenters, "threatened employer members of
Butte Contractors Association . . . with a work stoppage if
they continued to perform work on modular homes" manu-
factured by Summit Valley and Boise Cascade until each of
these manufacturers- signed contracts containing article
XXII. This conduct was claimed violative of Section
8(b)(4)(ii)(A) and (B) and 8(e) because it was claimed to have
the same proscribed objects as the pressures brought by Re-
spondent Carpenters.
The motion to amend was argued-on the record when the
hearing reopened on July 24. Following argument, I denied
the motion to amend, primarily because it appeared-to serve
no useful purpose since any remedy for the unlawful conduct
of Respondent Carpenters would also enjoin persons acting
as agents for the Carpenters or at its behest. Moreover, it
appeared that joining the Council and litigating its responsi-
bility at this point in the proceeding would have the effect of
unduly prolonging the hearing. An interim appeal from
denial of the motion to amend was entertained by the Board.
On July 27, my ruling was reversed, and I was directed to
grant the motion to amend. Thereafter, I ruled that Respond-
ent Council, as a result of the amendment, became a full party
to the proceeding entitled to time to answer, time to examine
the record already made , and to recall and reexamine wit-
nesses that had already appeared if their testimony related to
the allegations against the Council . To effectuate such rights,
the hearing was recessed from July 27 to September 12.
Thereafter, Respondent Council filed an answer, appeared by
its counsel when the hearing reconvened on September 12,
and participated fully in all aspects of the proceeding until the
hearing closed.
When the hearing reconvened, Respondent Council,
among other things, voiced objections to proceeding based on
lack of due process. After extended argument on the record,
these objections were ruled to be without merit. Due process
objections were reiterated in Respondent, Council's brief, filed
after the close of the hearing. No purpose will be served by
a detailed outline of such objections, or by discussion of each
of the issues raised. Suffice it to say that a fair appraisal of
the record including the time allowed, the opportunity af-
forded for examination of the previously made record, the
granting of the right to recall witnesses, and the extent of
actual participation in the remainder of the hearing, indicate
that counsel was afforded a full opportunity to make its de-
fense as to the allegations made against it. Under the circum-
stances, I find Respondent Council's objections, based on due
process grounds, to be without merit.
The unlawful conduct charged against the Council relates
only to a letter sent by the Council to certain contractors on
October 5, 1972. Before considering the text of this letter, and
the circumstances leading up to and following its sending, we
must consider the nature of the Council itself and its relation-
ship to Respondent Carpenters and the various construction
industry unions that comprise its membership.
Respondent Council is an organization whose membership
is comprised of the Butte area unions directly engaged in the
building industry. It is affiliated with the Building and Con-
struction Trades Department of the American Federation of
Labor. The Council exists to protect the interests of the differ-
ent trades represented , to serve as a forum to which the
members can bring their individual problems, and to give its
members aid and support in their organization and represen-
tation of employees where such is needed. Council member-
ship in the Butte area includes some 15 unions. The Council
is supported by a per capita tax paid by each affiliated union.
The Council holds regular monthly meetings to which these
unions send delegates. The delegates report their own in-
dividual problems at the meetings , participate in discussions
thereof, and in turn report back to their own unions what has
been discussed at Council meetings and what, if any, action
the Council membership had voted to undertake. In addition
to functioning as a forum for discussion, Respondent Council
will on occasion act on its own in pursuit of the interests of
CARPENTERS, LOCAL 112 923
its members. The Bender case provides an illustration of the
Council assisting members in a move to limit the entry of
modular houses into the Butte area . As we have seen, the
Council was joined as a party respondent in Bender, and the
Board 's cease and desist order ran against it as well as the
member unions also named.
Ever since the Bender case, Council minutes reflect con-
tinuing discussions at Council meetings concerning various
problems relating to the entry of modular houses into the
Butte area . Frequently issues of this nature were brought up
by delegates from the Carpenters. In the Council minutes of
September 19, 1972, we find Cadigan reporting to the Council
on problems he was having with Summit Valley at the time,
and the minutes noting that the Carpenters "are fighting the
methods they used here and ask support of" the Council.
Thereafter, a motion was carried that the Council executive
board meet on the matter as soon as possible. Minutes of
executive board meetings of the Council are not kept, and it
was not shown when, if at all, the executive board ever met
or considered this problem of supporting the Carpenters in
their dispute with Summit Valley.
On October 5, 1972, the Council sent out a letter written
on its own letterhead and signed by Mitchell Mihailovich,
president. This letter reads in full as follows:
NOTICE TO ALL CONTRACTORS:
Please be informed the Southwest Building Trades
Council has taken action that its membership will not
work on construction projects with personnel whose In-
ternational Union is not affiliated both locally and inter-
nationally with Building Trades Council, AFL-CIO.
This action pertains to onsite construction and will be in
effect commencing October 16, 1972.
On the attached sheet are the unions who are affiliated
both nationally and locally with the Building and Con-
struction Trades Department, AFL-CIO.
The attached sheet lists the names of 15 unions represented
as "`nationally or locally" affiliated. The Teamsters is not
such an affiliate, and its name is not on this list.
The General Counsel and the Charging Parties contend
this letter to show that Respondent Carpenters had success-
fully enlisted the support of Respondent Council as its agent
or ally in its fight to enforce article XXII. It was noted that
the letter was sent during the period when Respondent Car-
penters had commenced steps to enforce article XXII and
after it had solicited Council support. As we have seen, Team-
sters has a provision in its contract permitting Summit Valley
employees to perform onsite work where necessary "to pre-
serve and protect the integrity of the products manufac-
tured." If the contractors were being prevented from per-
forming the onsite foundation and stitching work, it was
reasonable to assume this provision would be invoked, and
that Summit Valley Teamsters employees would be brought
to the jobsite for such purposes. The letter and the omission
of Teamsters from the "attached list" is thus regarded as a
threat to contractors that on any jobsite where the "non-
affiliated" Teamsters employees might be called in to do the
foundation and the stitching work, none of the other Council-
affiliated crafts would work with them and the marketing of
the Summit Valley houses would be hindered.
Respondent Council denies that this letter had anything
whatsoever to do with the Carpenters or any other matter
relating to the Butte modular housing problem. According to
Mihailovich, three of the local building trades unions, Asbes-
tos Workers, Bricklayers, and Lathers, were at the time
delinquent in their required per capita payments to Respond-
ent Council. Mihailovich states that the letter was sent in part
for the purpose of putting pressure on these delinquent unions
to pay up their per capita tax and reinstate their local and
national affiliation." Mihailovich testified that the letter
had an additional purpose which did relate to the Teamsters.
The Teamsters, although not an affiliated Council member,
was recognized as playing a role in the building trades indus-
try. Mihailovich states that the Teamsters have the recog-
nized jurisdiction to make all deliveries to jobsites. According
to Mihailovich, however, on some of the larger jobsites, there
will be truck driving limited to the jobsite alone which falls
within the traditional jurisdiction of a craft working full time
at the site. At or about this time on some of the larger jobsites
it had been reported that members of the Teamsters had been
given full-time jobsite driving. This was not deemed appropri-
ate by the Council and Mihailovich asserts this was in part
what the letter was protesting. It stands uncontradicted that
the October 5 letter was sent only to four general contractors,
each one of which was at work on a large construction pro-
ject, not concerned with any aspect of residential construc-
tion. Mihailovich testified that he believed these four to be the
only contractors at whose jobsite members of the delinquent
unions were working, or the only ones with whom three were
Teamsters problems concerning onsite work.
In any event, the October 5 letter triggered a series of
events which for the most part add confusion to the question
of its real purpose. It is not shown that the letter directly
brought about any work stoppages at any Summit Valley or
Boise Cascade modular house sites, or indeed that any of the
contractors who might have engaged in such work even saw
it. However, at least one of the larger contractors who re-
ceived the letter reacted immediately and strongly.
Arthur G. McKee and Co. was a contractor working on a
large construction project for Anaconda Company. Noting
that the Teamsters was not on the list of affiliates attached
to the October 5 letter, he viewed it as a threat that Council
affiliates would order their members to leave his job if he
continued to use members of the Teamsters. McKee
promptly sent a telegram to the Building and Construction
Trades Department in Washington, D.C., with whom Re-
spondent Council is affiliated. In this telegram, McKee signi-
fied that he did not know the reason behind the October 5
letter, stated that he wished to live up to his own obligations
to all building trades unions, and urged that the Council's
parent organization take whatever steps it could to resolve
any existing problem in a manner which would avoid a work
13 In April 1972, the Council had sent letters to each of these three unions
noting their delinquency and stating that, if they did not pay up, "the
contractors . . . will be notified that the other crafts will no longer work
with them " However, the names of all three of these unions appear on the
October 5 "attached list," which would indicate that at that time each was
regarded as affiliated. It was not shown that copies of the October 5 letter
to the contractors were sent directly to these delinquent unions.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stoppage . No mention was made by McKee in this telegram
of any problem involving modular housing . McKee's tele-
gram seems to have . had some initial effect since we find the
following in the minutes of the regular meeting of Respond-
ent Council on October 17, 1972:
The letter concerning the Teamsters that was sent to the
contractors was read and the telegram that McKee sent
to the National Building Trades disputing this letter was
also read . President Mihailovich reported we have been
directed by the International to hold off on any action
until they have a chance to check this out.
While the foregoing minute entry would seem to confirm that
the October 5 letter related to the Teamsters , it is not incon-
sistent with the testimony of Mihailovich , nor does it neces-
sarily signify that the Teamsters problem involved modular
housing rather than full-time onsite driving. As described
above, the Summit Valley picketing was commenced on Oc-
tober 12 and following the initial charges filed in this proceed-
ing, such picketing and other coercive job action was enjoined
by- the District Court on November 8, 1972.
Although the,McKee telegram had resulted in the Coun-
cil's suspending any contemplated action, no meeting to re-
solve the issues, whatever they might be, relating to the Octo-
ber 5 letter took place until November 16. This meeting was
held in Butte and was attended by a representative of the
Building Trades Department , by International and local rep-
resentatives of the Teamsters , by, local representatives of the
Council, and by Cadigan of Respondent Carpenters . It is not
clear to what, if any , extent the issues of dues delinquency or
the Teamsters driving full time on jobsites were discussed
among those present. The testimony of Cadigan, Mihailo-
vich , and Roberts , a Teamsters representative , suggests the
principal subject of discussion to have been whether Summit
Valley employees would be permitted to follow houses to job-
sites. Teamsters representatives stated affirmatively that their
union had no interest in doing onsite work on any Summit
Valley modular house so long as the building trades unions
would undertake to do all that was needed to make the house
habitable . Teamsters signified, however, that, should Re-
spondent Carpenters or any other building trades unions
make it impossible for contractors to do this needed work, the
Summit Valley employees would follow the houses to the
jobsites and do what was needed to make them habitable. The
injunction was in effect at the time and Carpenters was no
longer able to pursue efforts to enforce article XXII against
contracting or noncontracting employers . Cadigan, however,
did signify that Carpenters had no interest in representing
employees at the Summit Valley plant. Although an attempt
was made to work out a written understanding between the
Teamsters and the Council, -efforts in this direction proved
unsuccessful , and the meeting ended on a somewhat
inconclusive note.
The foregoing scarcely presents a pattern of clarity. Con-
sideration of the entire picture, however , does not convince
me that it has been fully established that the conduct of the
Council was sufficiently related to the modular housing prob-
lem that it may be held responsible either as an agent or ally
of Respondent Carpenters in pursuit of the latter's unlawful
objectives.
A close relationship naturally exists between a building
trades - council and its affiliates . Ever since Bender modular
housing had been viewed by the Butte building trades unions,
and especially by the Carpenters , as a problem . Understanda-
bly there had been continued reportingand discussions of
matters relating to it at Council meetings . However, by Sep-
tember, the legality of article XXII appeared to be established
in some measure, and the Carpenters had undertaken- some
enforcement effort against the contractors which appeared to
have been successful . The support mentioned in the Council
minutes of September 19 as having been sought by Carpenters
is not defined , and the record does not disclose , that the
executive board of the Council ever discussed or decided on
a course of action before October 5. While it is reasonable to
assume that Respondent Carpenters might welcome support
efforts from the other crafts through the Council , especially
if the Teamsters were to commence doing some of the jobsite
work on the Summit Valley houses, the real question is
whether it is appropriate on the record before us to view the
October 5 letter as an instrument of such support.
The text of the letter leaves its purpose in some doubt. The
General Counsel views it as aimed at adding the Council's
"muscle" to the article XXII enforcement efforts of Carpen-
ters. However , if this be in fact its real purpose , why was it
not specifically spelled out in the letter ? Ariticle XXII was
viewed by the Carpenters and the Council as lawful at the
time. There is no other apparent reason why either should try
to disguise any joint or several efforts to have its terms ob-
served . If the letter were to have an impact commensurate
with the purpose which the General Counsel and Charging
Parties attribute to it, why does it make no mention of article
XXII and the Summit Valley-Teamster Contract as the focus
of and the reason for the threatened action? The record pro-
vides no good answers to these questions, and the explana-
tions offered by the Council as to the purposes of the October
5 letter only add to the confusion . Possibly those drafting the
letter were inept inasmuch as it is equally true that the as-
serted purposes relating to per capita delinquencies or Team-
sters onsite driving were not specifically spelled out either.
The confusion even becomes compounded in some degree
when we note that at the November 16 meeting , which admit-
tedly had resulted from the October 5 letter, the discussion
centered on the Teamsters-Summit Valley aspect of the prob-
lem, and dwelt but little on the per capita and onsite driving
issues.
This might leave the whole issue of purpose balanced in
doubt were it not for the uncontradicted fact that the letter
was sent to only four contractors, no one of which was in-
volved in residential housing, or would be likely at any time
to become involved in a modular housing problem . Carpen-
ters was pressing to, make it impossible' for Summit Valley
houses to be marketed in the Butte area unless sent to jobsites
in unfinished form . Carpenters could , and did bring its own
pressures against the -Butte area contractors called upon to do
needed carpentry work on Summit Valley's finished modular
houses. The only contractors, however, who could possibly be
affected would be those who undertook the sort of jobs re-
quired to make the Summit Valley houses habitable . Council
support could expand these pressures against the same con-
tractors . For the expanded pressure to be supportive, how-
ever , it had to be made known to those contractors who might
CARPENTERS, LOCAL 112
engage in residential work of this nature. The October 5 letter
was sent to none of them, but only to four larger contractors
who apparently had no concern with residential housing
whatsoever. This lends credence to the Council's assertion
that despite the wording of the letter and despite any subse-
quent incongruities in the explanations , the letter was neither
aimed at, nor intended to.relate to the modular housing dis-
pute and Carpenters efforts to enforce article XXII, and I so
find.
Accordingly, I find that it has not been established by a
preponderance of evidence that Respondent Council, acting
either as agent or at the behest of Respondent Carpenters,
sent the October 5 letter for any purpose relating to the
modular housing dispute. I further find that, by such letter,
Respondent Council did not threaten or coerce any contrac-
tot for any proscribed purpose within the meaning of Section
8(b)(4)(ii)(A) and (B) or Section 8(e). Therefore I shall
recommend that the allegations against Respondent Council
be dismissed.14
F The Conduct Alleged as Violative of Section 8(b)(4)(D)
The charges in Case 19-CD-212, the circumstances sur-
rounding the picketing of Summit Valley, the injunction, and
the 10(k) hearing and its result, have been referred to above.
The economic pressures have been found violative of Section
8(b)(4)(B). But there remains the question of whether such
economic pressures shall also be regarded as violative of Sec-
tion 8(b)(4)(D).
]Following the 10(k) hearing, the Board in its Decision and
Determination of Dispute issued on April 6, 1973,15 ruled
that there was "reasonable cause to believe that a violation of
Section 8(b)(4)(D) had occurred, and that the dispute is prop-
erly before the Board for determination." The Board went on
to hold that Teamsters were entitled to "the work of manu-
facturing or building of prebuilt or modular homes and other
structures, including work necessary to make the structures
habitable. .. " Thereafter, the General Counsel determined
that Respondent Carpenters had not given an unequivocal
indication of its intent to be bound by the Board's determma-
tion. Accordingly, the complaint before us was issued.
In the 10(k) determination the Board rejected Respondent
Carpenters claim that its pressures were exerted solely
against Jovick, related solely to enforcement of article XXII,
and that no pressures were directed against Summit Valley to
bang about a change in work assignment from Teamsters to
Carpenters. With regard to the circumstances supporting its
conclusion that there was reasonable cause to believe that a
violation of Section 8(b)(4)(D) existed, the Board stated the
folllowing:
Viewing the total circumstances of this case, we find that
Carpenters' conduct went beyond merely attempting to
14 On April 25 the Chamber moved for leave to file a reply brief on the
issues relating to the Council 's responsibility . The Rules and Regulations
make no provision for reply briefs, and I would regard such request as
untimely in any event Nevertheless, I have read and considered the con-
tents of the brief submitted and find nothing therein that would alter any
findings or conclusions that I have made herein regarding the responsibility
of the Council
13 Carpenters Local 112 (Summit Valley Industries, Inc.), 202 NLRB 974
(1973).
925
enforce Article XXII against Jovick. By pulling Jovick's
employees off the jobsite and threatening to picket
[Summit Valley's] workmen if they followed their work
to the jobsite and completed the work thereon, Carpen-
ters, for all intents and purposes was preventing
[Summit Valley] from delivering its product to its cus-
tomers in salable condition . Only if [Summit Valley]
drastically curtailed its inplant operations and delivered
the components of each modular house to the jobsite so
that Carpenters would then do the work guaranteed by
Article XXII , Section 3(a), in other words, reassign its
plant work from Teamsters to Carpenters, would Car-
penters remove pressure from [Summit Valley] and its
subcontractor, Jovick.
Corroborative of Carpenters' unlawful objective is the
evidence of a more direct pressure placed on [Summit
Valley] by Carpenters. The record clearly shows that
Carpenters picketed [Summit Valley's] plant for the ex-
press purpose of effecting a reassignment of the prefabri-
cation of the modular houses from workmen represented
by Teamsters to workmen represented by Carpenters,
either on the jobsite or in the plant. Cadigan in fact
admitted that the picketing would have ceased had the
inplant work been given to members of Carpenters. Fur-
thermore, Cadigan testified that additional picketing
and handbilling would take place if Teamsters insisted
on following the work to the jobsite.
Respondent's letter to the Regional Director, which is
quoted above, clearly does not signify an unequivocal inten-
tion upon the part of Carpenters to abandon the position
taken by the Carpenters in the 10(k) proceeding and subse-
quently rejected by the Board. The Carpenters neither urged,
nor does the record disclose, any newly discovered evidence
which would indicate that there has been any change in cir-
cumstances or change of its position. Thus it appears that all
matters relating to the work assignment question were pre-
viously considered and have been decided by the Board. In-
deed, nowhere in its brief does Carpenters urge or argue to
the contrary. Although Carpenters has asserted in this case
that it has no interest in representing employees in the Sum-
mit Valley plant , it made a similar representation in the 10(k)
proceeding, and thereafter, including the hearing in the in-
stant case, has failed to assert without equivocation that pick-
eting of either the plant or the houses at the jobsite will be
altogether abandoned. It is well settled that where no newly
discovered evidence is adduced, matters considered at the
10(k) hearing are not to be rehtigated and the result thereto-
fore found by the Board controls.16
Accordingly I find that Respondent by its picketing, and
other unlawful pressures against Summit Valley, for reasons
set forth-above and heretofore found by the Board to consti-
tute reasonable cause to conclude the conduct unlawful, and
its refusal to comply with the Board's Decision and Determi-
nation of Dispute, has engaged in conduct violative of Section
8(b)(4)(i) and (ii)(D) of the Act.
16 International Brotherhood ofElectncal Workers, Local 3 (Mansfield
Contracting Corporation), 206 NLRB 423 (1973), Bricklayers Local I
[Shelby Marble and Tile Col v NL R. B., 475 F 2d 1116 (C A D C , 1973)
'926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV THE REMEDY
Having found that Respondent Carpenter has engaged in
unfair labor practices within the meaning of Section
8(b)(4)(i)(n)(B) and (D) of the Act, I shall recommend that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
The Chamber urges that the nature of the violations calls
for remedies that depart from those normally given. These
would include a so-called broad cease-and-desist order, physi-
cal expungement of article XXII, and widespread dissemina-
tion of the notice by having it read to members, mailed to
contractors bound by article XXII, and published in a local
newspaper. In addition the Chamber urges recision of fines
assessed for violations of article XXII, or refunding if the
fines had been collected, and restoration of union member-
ship if expulsion has occurred.
The order will enjoin pressures against not only contrac-
tors who have been pressured to date, but also will enjoin
pressures against all contractors and other persons whose
connection with the modular housing industry might subject
them to the effects of such conduct. Having found article
XXII lawful on its face, it, of course, cannot be expunged, but
it has been made clear above that such holding is a limited
one, and article XXII enforcement efforts may be undertaken
solely in situations where the contracting employer has con-
trol over work assignment.
I see no reason for departure from the usual posting prac-
tice with regard to the notice. The members will be suffi-
ciently apprised of the holding thereby, and there is no reason
to believe that they, or the local, will not abide by the require-
ments of the order. I have found that Carpenters sought
article XXII in good faith, and that at the time it undertook
the enforcement efforts herein found to have had a proscribed
object, Carpenters had some reason to believe such might be
lawful. Carpenters has been enjoined from enforcement of
article XXII by court order since November 1972. It does not
appear that the injunction had unusual dissemination, and it
has not been shown that Carpenters or its members have
not complied therewith, or that Summit Valley or Boise Cas-
cade have been confronted with difficulties in marketing their
houses in the Butte area during this period.
The record indicates that in some instances fines were
imposed on union members for violations of article XXII. It
is not altogether clear if any such fines were collected after
the injunction. In any event I shall recommend that such fines
be rescinded, and the amounts be refunded if they have been
collected. In addition if union membership has been denied
for the same reason, I shall direct that it be restored.
Although I have found insufficient evidence to hold Re-
spondent Council responsible, the record fully establishes its
function and the close relationship it has to Respondent Car-
penters and the other building trades unions. The cease-and-
desist order against Respondent Carpenters clearly prohibits
it to use any persons as its agents or allies in carrying out any
of the proscribed conduct, and to the extent it should under-
take to do so, the order is to be construed as enforceable
against such agents or allies.
Upon the basis of the entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent Carpenters and Respondent Council are,
and have been at all times material to the issues in these
proceedings, labor organizations within the meaning of Sec-
tion 2(5) of the Act.
2. Silver Bow Employers Association and Butte Contrac-
tors Association and their employer members, as well as any
other parties who are signatory to a contract between Re-
spondent and such associations, are each employers within
the meaning of Section 2(2) of the Act, and are engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
3. By a variety of economic pressures relating to enforce-
ment of article XXII of Respondent Carpenters collective-
bargaining agreement which as found above were directed at
contracting and noncontracting employers or their em-
ployees, Respondent Carpenters has engaged in conduct vi-
olative of Section 8(b)(4)(i) and (ii)(B) of the Act.
4. By economic pressures including picketing directed at
Summit Valley, as found above, Respondent has engaged in
conduct violative of Section 8(b)(4)(D) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. By entering into a contract containing article XXII with
Silver Bow Employers Association and Butte Contractors
Association, Respondent Carpenters did not engage in con-
duct violative of Section 8(e) and Section 8(b)(4)(i) and (ii)(A)
of the Act.
7. By sending the letter of October 5 to certain contractors,
Respondent Council did not engage in conduct violative of
Section 8(b)(4)(ii)(A) or (B) or Section 8(e) of the Act.
Upon the basis of the entire record, the findings of fact, and
conclusions of law, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:
ORDER"
Respondent , United Brotherhood of Carpenters & Joiners
of America, Local 112 , AFL-CIO, Butte, Montana, its offic-
ers, agents, and representatives, shall:
1. Cease and desist from:
(a) Inducing or encouraging any employee to refuse to
work on, handle or transport any modular house, or threaten
or coerce any person, including Butte area contractors or any
other employer engaged in some aspect of constructing , trans-
porting, or handling modular houses , where in either case an
object of such pressures is to force or require the Butte area
contractor, or any other person , to cease working on a modu-
lar house at a jobsite, either altogether, or unless and until
such house be brought to the jobsite in a condition which
conforms to article XXII of the contract; or where an object
is to force or require the manufacturers of modular houses
either to cease bringing such houses into the Butte area al-
17 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
CARPENTERS, LOCAL 112
together, or to change their mode of operation so that such
houses are brought to Butte area jobsites in a condition that
'con'forms to article XXII of the contract.
(b) Refusing to comply with the Board's Decision and
Determination of Dispute by picketing, or other economic
action, directed at Summit Valley, or any other person, where
an object is to force or require Summit Valley to assign car-
pentry work, whether in-plant or onsite, to employees who
are members of Respondent Carpenters, rather than to em-
ployees who are members of Teamsters
2. Take the following affirmative action which I fmd to
effectuate the policies of the Act:
(a) Post in conspicuous places at Respondent's business
offices, meeting halls, and all other places where notices to
members are customarily posted, copies of the attached no-
tice marked "Appendix."" Copies of said notice, on forms
provided by the Regional Director for Region 19, after hav-
ing been duly signed by Respondent Carpenters authorized
18 In the event that the Board's Order is enforced by a Judgment of a
Umted States Court of Appeals, the work in the notice reading "Posted by
Ordt r of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board "
927
representatives, shall be posted by Respondent Carpenters
immediately upon receipt thereof and be maintained by it for
60 consecutive days. Reasonable steps shall be taken by Re-
spondent Carpenters to insure that said notices are not al-
tered, defaced, or covered by any material.
(b) Rescind any fines assessed, refund any fines collected,
and restore membership status in any case where union mem-
bers have been penalized for engaging in conduct deemed by
Respondent Carpenters to have been violative of article XXII
of its existing contract.
(c) Sign and mail sufficient copies of the notice to the
aforesaid Regional Director for forwarding to any employer
involved in the construction or transportation of modular
houses destined for Butte area jobsites for posting by them,
if they are willing, in all locations where notices to employees
are customarily posted.
(d) Notify the Regional Director for Region 19, in writing,
within 20 days from the date of this Order, what steps Re-
spondent Carpenters is taking to comply herewith.
IT IS FURTHER-RECOMMENDED that the allegations of the
complaint alleging violations by Respondent Carpenters of
Section 8(e) and 8(b)(4)(i) and (ii)(A) be dismissed, and that
the allegations alleging violations by Respondent Council of
Section 8(e) and 8(b)(4)(ii)(A) and (B) be dismissed.