Elevator Constructors Local 91 (Otis Elevator)

National Labor Relations Board - Board Decisions

Sep 26, 2005

345 N.L.R.B. 925 (N.L.R.B. 2005)

ELEVATOR CONSTRUCTORS LOCAL 91 (OTIS ELEVATOR CO.)
345 NLRB No. 68
925
International Union of Elevator Constructors, Local
91 and Otis Elevator Company, Inc. Case 34–
CC–200
September 26, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On April 13, 2005, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and the
Charging Party filed cross-exceptions. The Respondent
filed an answering brief to the Charging Party’s cross-
exceptions and the Charging Party and General Counsel
filed answering briefs to the Respondent’s exceptions.
The Respondent filed a reply brief to the answering
briefs of the General Counsel and Charging Party.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions,2
cross-exceptions3 and briefs and has decided to affirm
the judge’s rulings, findings,4 and conclusions and to
adopt the recommended Order

1 The Charging Party’s answering brief was included in the same
document containing its cross-exceptions, and was filed on June 15,
2005. The Respondent requests that the answering brief be “disre-
garded” as untimely under the Board’s Rules because it was due on
June 8. Although the Respondent acknowledges that the Charging
Party was granted an extension of time to June 15 to file cross-
exceptions, it contends that the extension of time did not extend the
time beyond June 8 to file an answering brief.
We reject the Respondent’s request. As explained by the Board in P
& M Cedar Products, 282 NLRB 772 (1987), “a request for an exten-
sion of time to file cross-exceptions has been construed to enlarge the
time to file an answering brief even if the extension-of-time request
does not specifically allude to an answering brief.” Here, although the
Charging Party’s answering brief was originally due on June 8, its
request for, and grant of, an extension of time to June 15 to file cross-
exceptions also enlarged the time until June 15 to file its answering
brief.
2 The Respondent’s exception to the judge’s findings of 8(b)(4)(i)
and (ii)(A) violations do not meet the minimum requirements of Sec.
102.46(b) of the Board’s Rules. The Respondent merely cites to the
judge’s decision but fails to assert, either in its exceptions or supporting
brief, the particular error it contends the judge committed or on what
grounds it believes the judge’s findings and recommended remedy
should be overturned. Accordingly, under Sec. 102.46(b)(2) the Re-
spondent has waived exceptions to the judge’s findings of 8(b)(4)(i)
and (ii)(A) violations, and we shall adopt his findings pro forma. See
Gaetano & Assoc., 344 NLRB No. 65 fn. 6 (2005) and Oak Tree
Mazda, 334 NLRB 110 (2001).
3 As correctly pointed out by the Charging Party in its cross-
exceptions, the collective-bargaining agreement in this case is not, as
the judge indicated, solely between the Charging Party and Respondent
Local Union; rather, it is between the Charging Party and the Interna-
tional Union of Elevator Constructors, for and on behalf of its affiliated
local unions, including the Respondent.
4 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, the International Union of
Elevator Constructors, Local 91, East Hartford, Con-
necticut, its officers, agents, and representatives, shall
take the action set forth in the Order.
Daryl Hale, Esq., for the General Counsel.
J. William Gagne Jr., Esq., for the Respondent.
Peter B. Robb, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case in Hartford, Connecticut, on February 3, 4, and 7, 2005.
The charge and amended charge were filed on September 24
and October 12, 2004. The complaint, which was issued on
October 29, 2004, alleges:
1. That at all material times, Konover Construction Corpora-
tion was hired as the general contractor for the construction of a
facility in Hartford for Connecticut Public Television.
2. That in relation to the aforesaid project, Konover entered
into a subcontract with Otis Elevator Company to manufacture
and install elevators.
3. That Otis Elevator has a contract with the Union covering
certain of its elevator employees, which provides at article IV,
paragraph 6:
The wrecking or dismantling of elevator plants shall be per-
formed by Elevator Constructor Mechanics, Elevator con-
structor Helpers and Elevator constructor Apprentices. It is
understood and agreed that the Union reserves the right to re-

trative law judge’s credibility findings unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
We agree with the judge that the Respondent, by instructing Otis’s
bargaining unit employees who were assigned to the CPTV job not to
perform their assigned work, induced and encouraged the employees to
strike in violation of Sec. 8(b)(4)(i)(B). Accordingly, we find it unnec-
essary to pass on the judge’s finding that the Respondent also violated
Sec. 8(b)(4)(i)(B) by inducing and encouraging a “sickout” of unit
employees at Otis jobsites elsewhere in Connecticut. Adoption of this
additional finding of violation would be cumulative and would not
affect the remedy.
Member Liebman agrees that the Respondent made threats that are
unlawful under Sec. 8(b)(4)(ii)(B). In so finding, she relies on the
judge’s finding that the Respondent had informed Robert Nelson, Ko-
nover’s project superintendent, on the first day of the dispute, that the
Respondent was not going to allow the Otis employees it represented to
work on the elevators at the jobsite because the elevator demolition
work had not been performed by elevator union employees. This direct
communication with Konover, considered by Member Liebman to be
the neutral/secondary employer, makes this case distinguishable from
precedent, which Member Liebman finds questionable, where the
alleged 8(b)(4)(ii)(B) threats are made only to the primary employer.
See Teamsters Local 247 (Rymco, Inc.), 332 NLRB 1230 fn. 2 (2000).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD926
fuse to install any new elevators in any plant where the
wrecking or dismantling of the old elevator plant has been
done by other than Elevator constructor Mechanics, Elevator
Constructor Helpers and Elevator Constructor Apprentices.
Before the local union shall refuse to install a new elevator,
such action must be first approved by the International. Eleva-
tor plants as referred to in this paragraph are understood to in-
clude elevators, escalators, moving stairways, dumbwaiters,
moving walks, and all other equipment coming under the ju-
risdiction of the Elevator Constructors.
4. That at some time before March 26, 2004, Konover as-
signed the work of demolishing and removing the existing ele-
vators to employees other than those of the type represented by
the Union. The General Counsel therefore alleges that the Un-
ion has had a labor dispute with Konover.
5. That on or about March 26, 2004, the Union, by Steven
Bruno, in furtherance of its dispute with Konover, appealed to
and ordered individuals employed by Otis to refuse to work at
the CPTV jobsite.
6. That on or about March 26, 2004, the Union, by Bruno, in
furtherance of its dispute with Konover, notified Otis that pur-
suant to the above quoted provision of its contract, its members
would refuse to install the elevators at the construction project.
7. That on or about March 30, 2004, the Union, by Daniel
Kelly, in furtherance of its dispute with Konover, threatened
Otis with unspecified reprisals if it failed to provide other work
to the individuals who refused to work at the CPTV project.
8. That on or about March 26 and 31, 2004, the Union in
furtherance of its dispute with Konover, appealed and ordered
individuals employed by Otis at all of its Connecticut jobs, to
engage in a work stoppage.
On the entire record in this case including my observation of
the demeanor of the witnesses and after reviewing the briefs
filed by the parties, I make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
There is no dispute and I find that Otis Elevator is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and a person as defined in Section
8(b)(4)(B) of the Act. It also is admitted and I find that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent Union has been the collective-bargaining
representative of about 75 to 80 elevator mechanics, appren-
tices and helpers who are employed by Otis in the State of
Connecticut. Its most recent collective-bargaining agreement
runs from July 9, 2002, until July 8, 2007. This contract con-
tains the provision described above.
Steven Bruno is the Union’s business manager and Daniel
Kelly is a union business agent.
In 2002, Connecticut Public Broadcasting (CPTV), decided
to modernize its facilities in Connecticut and to that end hired,
on November 1, 2002, Konover Construction Corp. to be its
construction manager. Konover, which does not employ con-
struction workers on its own, was in turn, responsible for the
hiring of the various subcontractors to do the work. The build-
ing involved was a 6-story building that had three elevators;
two for passengers and one for freight. Construction began in
the summer of 2003.
The original plan was to modify the existing passenger eleva-
tors and to replace the existing freight elevator. To that end,
Konover issued specifications for bidders and Otis, submitted a
bid. This bid, insofar as it related to the replacement elevator,
included a bid for the labor involved in demolishing and remov-
ing the old freight elevator.
While the elevator bids were pending, CPTV (the owner),
decided that it instead of refurbishing the two passenger eleva-
tors and buying a new freight elevator, it would be cheaper to
replace all three elevators with three new hydraulic elevators.
Accordingly, in the autumn of 2003, Konover notified Otis and
other elevator companies that the specifications had been
changed.
At about the same time, Konover decided to use its existing
demolition contractor, Cherry Hill (who already was on the site
for other work), to remove the three old elevators. This was
done by Cherry Hill’s employees who are not represented by
the Elevators’ union. There are no Connecticut laws, rules, or
regulations that would prevent Cherry Hill or its employees to
do this type of work.1 And the Respondent presented no con-
vincing evidence that this demolition work, if done by a con-
tractor using people other than elevator workers, would be un-
safe either to Cherry Hill’s workers or to the union workers
who would be responsible for installing the elevators. (or un-
safe to anyone else).
In or about early December 2003, Konover advised both Otis
and a rival bidder (Schindler), that the elevator specifications
had changed and requested new bids. In sum, Konover advised
that the demolition work had already been done and that the
project had changed from a modernization job to a job requiring
the installation of new elevators.
Notwithstanding that Schindler was the lower bidder; Ko-
nover awarded the work of furnishing and installing three new
hydraulic elevators to Otis. Since the work of demolishing and
removing the old elevators had already been done by Cherry
Hill, that portion of the work was not offered to or bid by Otis.
In January 2004, Otis sent employees over to the jobsite to
measure the dimensions of the elevator shafts so that the eleva-
tors could be built to fit. On March 11, 2004, Otis confirmed its
contract with Konover and on March 23, 2003, materials pre-
paratory to installation were delivered to the CPTV jobsite.
On March 23, 2004, Otis assigned three employees to start the
job at the site. (Trevor Johnston, Louis Rodriguez, and Eric
Sclare.) They were scheduled to start work on March 26.
On the morning of Friday, March 26, 2004, the three Otis
employees showed up at the jobsite. Nevertheless, at about 8
a.m., the Union’s business manager, Steve Bruno, appeared at
the site and told Robert Nelson, Konover’s project superinten-
dent, that he was not going to allow the Otis employees to work

1 The State of Connecticut has an agency called the Connecticut Oc-
cupational Licensing Board that issues licenses to employers and trades
people to insure that construction work is done safely. This agency does
not require any license to remove elevator equipment.
ELEVATOR CONSTRUCTORS LOCAL 91 (OTIS ELEVATOR CO.) 927
because the elevator demolition work had not been done by
elevator union employees. According to Otis Superintendent,
Russ Larson, he also had a conversation with Bruno wherein he
told Bruno that Otis had not been hired to remove the old ele-
vators. Larson testified that Bruno responded that because the
demolition work had not been done by union employees, this
was a violation of article IV, paragraph 6 of the Union’s agree-
ment with Otis. According to Larson, Bruno insisted that Otis
reassign the three employees who were at the CPTV jobsite and
he acquiesced.
On the afternoon of March 26, 2004, Bruno met with Otis’
general manager, Jeff Hastings. At this meeting, Bruno restated
his position that he was not going to permit the installation
work to go forward because the old elevators had been demol-
ished by employees who were not members of the Elevators’
Union. Bruno was not impressed by Hastings’ assertion that
Otis had not been awarded the demolition work and was un-
moved by Hastings’ suggestion that the Union file a grievance
if it felt that the contract was being violated. Toward the end of
the meeting, Bruno explained that since the demolition work
had already taken place, he expected Otis to pay a team of em-
ployees for 1 week. (That being, I imagine, the amount of man
hours that Bruno estimated would have been required to re-
move the old elevators.)
On Monday morning, March 29, Larson told two Otis em-
ployees (mechanic Trevor Johnston and apprentice Sawyers),
to go to the CPTV site and start work. When they called in their
assignment to the Union, Trevor Johnson told Larson that
Bruno would not permit him to work at the jobsite. Later in the
morning, Larson, listened to two voice mail messages from
Bruno wherein Bruno stated that he still had a problem with the
job and would not permit the two Otis employees to work
there. In the messages, Bruno demanded that Larson reassign
the two employees to other jobs.
Later on March 29, Dan Kelly, the Union’s business agent,
called Hastings and reiterated the complaint that the demolition
work had been done by employees who were not members of the
Elevators Union. Hastings repeated his assertions that Otis had
not been awarded that work and therefore could not give it to the
Otis employees. In an attempt to compromise, Hastings said that
Otis would reassign the two employees to another jobsite if the
Union would agree that they could start work at the CPTV site on
the next day. Kelly said he would have to talk to Bruno about
this. About 30 minutes later, Kelly called back and said that the
Union would allow the two employees to start at the CPTV job-
site on March 30 if they were reassigned to another job on March
29.
Early on March 30, 2004, Hastings received a call from
Bruno who said that he would not allow the work at the CPTV
job to commence. When Hastings said that he thought that he
had made an agreement with Kelly, Bruno stated that he had
changed his mind. Bruno demanded that the two Otis employ-
ees be reassigned to other jobs and Hastings said he would not
and expected them to start work at the site. Hastings again sug-
gested that the Union file a contract grievance and said that if
the two employees assigned to the job did not do their work
they would be subject to discipline.
On the morning of March 30, Johnston, the mechanic as-
signed to the job, called and told Otis Superintendent Larson
that he had spoken to the Union and could not do the work. The
two employees thereupon returned to the Otis office and did not
work at the site. Thereafter, Union Agent Kelly phoned Larson
and despite apologizing for reneging on the previous day’s
agreement, said that unless Otis found work for the two em-
ployees at other jobsites, “there would be consequences.”
On March 31, 2004, at about 5:30 a.m., Larson arrived at his
office and began listening to the voice mail messages from 18
of the 20 Otis employees under his supervision. They called in
sick. The two employees who did not call in sick nevertheless
left work at some point during the day. Moreover, all but one of
the remaining 75 to 80 Otis employees in the Connecticut bar-
gaining unit also failed to report to work on March 31.
Upon learning of the “sick out,” David Powilatis, Otis’ labor
relations manager, called Ron Koerbel, the Union’s regional
director. After explaining the problem, Koerbel stated that he
would investigate and call back. Later in the afternoon, Koerbel
called Powilatis and left a message that the employees were
going to go back to work.
On April 1, 2004, most of the employees returned to work
except for Johnston and Sawyers who didn’t show up for their
assigned job at CPTV. Also on that morning, Union Agents
Kelly and Bruno went to the jobsite and spoke to Howat, Ko-
nover’s project manager. During this conversation, Howat ex-
plained the history of the project and told Kelly and Bruno that
the demolition work had been completed before Otis had re-
ceived the contract to install the elevators. About a half hour
later, Bruno called Howat and said that he would have the
“guys” at the site on April 2. After that, the dispute ended and
the work started.
III. ANALYSIS
The complaint alleges that the Union violated Section
8(b)(4)(i) and (ii)(B) and (ii)(A) of the Act.
To summarize, Section 8(b)(4)(i) and (ii)(B) makes it illegal
for a labor organization to (i) induce or encourage any indi-
viduals employed by any person to engage in a work stoppage
or a refusal to perform services or, (ii) to threaten, restrain or
coerce any person for (B) an object of forcing or requiring any
person to cease doing business with any other person. This
section of the Act is commonly called the secondary boycott
provision of the Act and typically prohibits a union from strik-
ing, picketing, or otherwise coercing entity A (if it does not
have a primary dispute with A), to force or require entity A to
cease doing business (in whole or in part) with entity B. It
should be noted that the Act also specifically states: “Provided,
that nothing contained in this clause (B) shall be construed to
make unlawful, where not otherwise unlawful, any primary
strike or primary picketing.”
Construing the Act’s application to situations involving
strikes or work stoppages, (as opposed to picketing or leafleting
activities), makes it necessary to distinguish actions are primary
or secondary activity, a task described by the Supreme Court as
not always obvious. Electrical Workers Local 761 (General
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD928
Electric) v. NLRB, 366 U.S. 667 at 674 (1961).2 Thus, the
normal work stoppage targeted at employer A by a union repre-
senting its own employees, during contract negotiations would,
by definition, cause some degree of business cessation between
that employer and its suppliers and customers. But such a strike
clearly would be a primary strike and, as noted by the Court in
General Electric, is not the type of activity that Congress in-
tended to outlaw. On the other hand, if that same union went to
company A’s supplier (company B), and induced those em-
ployees to engage in a strike, such an action would cause a
cessation of business between company B and its customers
and would be deemed to be secondary because the economic
pressure brought on company B is being brought to bear on an
employer with whom the union does not have the primary dis-
pute. In that circumstance, company B is deemed to be an “un-
offending” employer who should be free from pressures and
controversies not its own. NLRB v. Denver Bldg. & Construc-
tion Trades Council, 341 U.S. 675 (1951).
Insofar as relevant to this case, Section 8(b)(4)(i) and (ii)(A)
makes it illegal for a labor organization to (i) induce or encour-
age any individuals employed by any person to engage in a
work stoppage or a refusal to perform services, or (ii) to
threaten, restrain or coerce any person for (A) an object of forc-
ing or requiring a person to enter into an agreement prohibited
by Section 8(e) of the Act.
This necessarily leads us to Section 8(e) which states:
It shall be an unfair labor practice for any labor organization
and any employer to enter into any contract or agreement, ex-
press or implied, whereby such employer ceases or refrains or
agrees to cease or refrain from handling, using, selling, trans-
porting, or otherwise dealing in any of the products of any
other employer, or cease doing business with any other per-
son, and any contract or agreement entered into heretofore or
hereafter containing such an agreement shall be to such extent
unenforceable and void: Provided, That nothing in this sub-
section (e) [this subsection] shall apply to an agreement be-
tween a labor organization and an employer in the construc-
tion industry relating to the contracting or subcontracting of
work to be done at the site of the construction, alteration,
painting, or repair of a building, structure, or other work. . . .
Taken together, Section 8(b)(4)(i) and (ii)(A) and (ii)(B) and
8(e) constitute a comprehensive statutory plan to prohibit sec-
ondary boycotts but to continue to allow primary strikes, work
stoppages, or other primary activities.
In the present case, the uncontradicted evidence shows that
Union Agents Bruno and Kelly told Otis management, on and
after March 26, that because the demolition work had been

2 The General Electric case involved a “common situs” situation
where there were multiple employers at a single location where the
union was engaged in picketing an employer with whom it had an
economic dispute. I should note that the reason that I am distinguishing
work stoppages and strikes from picketing, leafleting, and other forms
of publicity is that a strike or work stoppage necessarily causes some
degree of cessation of business between the struck employer and others,
whereas picketing and/or leafleting activity may or may not cause the
targeted company to lose some business. These days, it is not uncom-
mon for people, including truckdrivers, to simply ignore picket lines.
done by workers who were not represented by that Union, they
would not allow Otis’ employees to start work at the CPTV
site. And indeed, when on March 30, 2004, Otis refused the
Union’s demands to reassign the employees, the two employees
who were supposed to work at the site, called in and said that
the Union had not permitted them to work.
When on March 30, Larson refused Kelly’s demand that he
reassign the two workers and suggested that they would be
subject to disciplinary action if they did not report to work,
Kelly stated that there would be consequences. Sure enough, on
the following day, virtually all of Otis’ elevator workers in the
Connecticut region failed to show up for work and left mes-
sages that they were out sick. In the absence of evidence show-
ing an unusual and sudden outbreak of infectious disease, and
in light of the previous statements by Union Agents Kelly and
Bruno, I cannot help but conclude that this “sick out” was, in
fact a strike that was induced and encouraged by the Union.
Laborers Local 616 (Bruce & Merrilees), 302 NLRB 841
(1991); National Steel & Shipbuilding Co., 324 NLRB 499
(1977).
Accordingly, between March 26 and 31, we have substantial
evidence that the Union’s agents (a) threatened a work stoppage
against Otis, (b) induced and encouraged the two Otis workers
who were assigned to the CPTV site to refuse to perform ser-
vices, and (c) induced and encouraged other Otis employees to
engage in a statewide strike. All of these are actions, would be
prohibited by Section 8(b)(4)(i) and (ii), if those actions were
taken against a “secondary” person for an object of causing that
person to cease doing business with the employer with whom
the Union had its real primary dispute, or if those actions were
for the purpose of requiring Otis to enter into an unlawful 8(e)
hot cargo agreement.
The question therefore is, was Otis a secondary or primary
person in the circumstances of this case.
The Union makes two arguments. The first is that the work
assigned to the elevator employees would be dangerous because
the previous work of removing the old elevators from the build-
ing created a dangerous condition. I reject this argument be-
cause there was no real showing that this was so. The fact that
union agents may say it is unsafe is not quite the same thing as
proving it to be unsafe. Moreover, the removal and demolition
of elevators does not require any licensure by the Connecticut
Occupational Licensing Board which functions to insure that
construction work is done safely.
The second argument is that the Union, in conformance with
its contract with Otis, was only seeking to preserve bargaining
unit work for its members and therefore that its dispute was
with Otis as the primary employer.
The General Counsel and the Charging Party respond that the
Union’s argument should be rejected because in this case, the
work of removing the old elevators was never assigned to Otis
and therefore Otis never had the right to control it. That is, al-
though Otis’ original bid included the demolition work, Ko-
nover at some point decided to have that work done by Cherry
Hill and did not subcontract that work to Otis when it agreed to
buy the three new elevators from Otis. The leading cases deal-
ing with the distinction between lawful work preservation
clauses versus unlawful secondary hot cargo clauses are NLRB
ELEVATOR CONSTRUCTORS LOCAL 91 (OTIS ELEVATOR CO.) 929
v. Enterprise Assn., 429 U.S. 507, 525–526 (1977), and Na-
tional Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612 (1967).3
In Enterprise, the Court stated;
[T]he existence of a work preservation agreement was not an
adequate defense to a charge that the union had engaged in il-
legal secondary activity; and that a union-instigated refusal of
a subcontractor’s employees to handle certain materials,
which were included in the general contractor’s job specifica-
tions and delivered to the construction site on the basis of a
valid work preservation agreement, constituted unlawful sec-
ondary activity, where the union’s object was in reality to in-
fluence the general contractor by exerting pressure on the
subcontractor, an employer who had no power to award the
work to the union.
The Union, in support of its position, cites Painters District
Council No. 20 (Uni-Coat Spray Painting Inc.), 185 NLRB 930
(1970). In that case, a painting subcontractor, having a collec-
tive-bargaining agreement with a union arranged with the gen-
eral contractor so that the general contractor specified a certain
type of paint that was manufactured by a third company and
that had to be used on the worksite. This was a type of paint
that could be sprayed on and its use was desired by the painting
subcontractor because it lowered his labor costs. The Union
argued that the painting subcontractor was the primary em-
ployer because it breached its collective-bargaining agreement
by withholding work from its own employees. The painting
subcontractor argued that it did not have the right to control as
it was the general contractor who had specified the use of the
spray-on paint. But the Board found in favor of the Union be-
cause the evidence showed that it was the painting subcontrac-
tor who had initiated the use of the spray-on paint and therefore
it could not be heard to argue that it did not have the right of
control and therefore was an “unoffending” neutral.
The facts in the present case are distinguishable from those
in Uni-Coat Spray, as there is no evidence to suggest that Otis
conspired or even participated in any way with Konover in the
latter’s decision to have the old elevators removed by Cherry
Hill. Unlike the Uni-Coat case, where the painting contractor
had an economic interest in having the particular paint desig-
nated for use, so as to reduce its own labor costs, the opposite is
the case with Otis. As to Otis, it clearly would have been in its
economic interest to have the removal and demolition of the
old elevators done by its own employees inasmuch as Otis gets
paid more if its employees do more work at the jobsite.

3 In National Woodwork, the Supreme Court held that the union did
not violate Sec. 8(e) by including in its collective-bargaining agreement
a provision stating that none of its members would handle prefitted
doors purchased by their employer. The Court held that although the
provisions of the clause, if taken literally, would require the company
to cease doing business with the door’s vendors, the object of the clause
was to preserve work traditionally assigned and done by the employer’s
own employees who were covered by the collective-bargaining agree-
ment. In this respect, the Court stated that although a literal reading of
Sec. 8(e) would lead to a conclusion that the clause in question had a
cease doing business objective, the Court stated that Congress meant
Sec. 8(e) and 8(b)(4)(B) only to prohibit “secondary objectives.”
The Union did not contend that its attempt to enforce article
IV, paragraph 6 was protected by the construction industry
proviso to Section 8(e) of the Act. Nevertheless I note that even
though Otis was performing construction work at the site in
question, the Board has held that a contract clause allowing for
self-help, (by way of a strike or work stoppage), is exempt from
the protection of the construction industry proviso to Section
8(e). Teamsters Local 89, 254 NLRB 783, 787–788 (1981);
Muskeogon Bricklayers Union #5, 152 NLRB 360, 366 (1965);
District Council of Carpenters of Portland & Vicinity, 243
NLRB 416 (1979); Teamsters Local 179, 277 NLRB 602
(1985). For example, in District Council of Carpenters, id, the
Board stated:
It is settled that although a contract within the construction in-
dustry proviso to Section 8(e) is exempt from the operation of
that section, it may be enforced only through lawsuits and not
by threat, coercion, or restraint proscribed by Section
8(b)(4)(B). . . . This is so because Congress, in leaving lawful
certain onsite “hot cargo” agreements, did not intend to
change the law prohibiting non-judicial enforcement of such
contracts.
I therefore conclude that in this case, the Union despite the
provision of its collective-bargaining agreement and its asserted
work preservation claim, did not have a primary dispute with
Otis because the work claimed to be preserved was not work
that was within the control of Otis to assign to the employees
represented by the Union. It follows that the Union’s attempt to
enforce that provision, in this context, by threats of work stop-
pages and actual work stoppages, forced or required Otis (the
secondary) to cease doing business with Konover in retaliation
for Konover’s decision to use a contractor employing workers
not represented by the Respondent, to remove and demolish the
old elevators at the CPTV construction site. In a sense, the ul-
timate object of the Union’s actions here was to place economic
pressure on Otis so as to place economic pressure on Konover
so that Konover would not to do business, in the future, with
companies not having contracts with or employing members of
the Respondent Union.
CONCLUSIONS OF LAW
Based on the above, I make the following findings and con-
clusions of law.
1. The Union made threats of work stoppages and engaged in
work stoppages for an object of forcing or requiring Otis to
cease doing business with Konover. As such I conclude that the
Union violated Sections 8(b)(4)(i) and (ii)(B) of the Act.
2. The Union made threats of work stoppages and engaged in
work stoppages for an object of forcing and requiring Otis to
“re-enter” a hot cargo agreement prohibited by Section 8(e) of
the Act. I therefore conclude that the Union violated Section
8(b)(4)(i) and (ii)(A) of the Act.
3. The foregoing violations affect commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend the issuance of an order
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD930
directing it to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The Respondent, the International Union of Elevator Con-
structors, Local 91, AFL–CIO, East Hartford, Connecticut, its
officers, agents and representatives, shall
1. Cease and Desist from
(a) Engaging in, or inducing or encouraging any individual
employed by Otis Elevator Company to engage in a strike or a
refusal in the course of his or her employment to use, manufac-
ture, process, transport, or otherwise handle or work on any
goods, articles, materials, or commodities or to perform any ser-
vices; or threatening, coercing, or restraining Otis Elevator Com-
pany, where in either case an object thereof is to force or require
Otis Elevator Company to enter into an agreement which is pro-
hibited by Section 8(e) of the Act.
(b) Engaging in, or inducing or encouraging any individual
employed by Otis Elevator Company to engage in a strike or a
refusal in the course of his or her employment to use, manufac-
ture, process, transport, or otherwise handle or work on any
goods, articles, materials, or commodities or to perform any
services; or threatening, coercing, or restraining Otis Elevator
Company, where in either case an object thereof is to force or
require Otis Elevator Company to cease doing business with
Konover Construction Corporation or any other person or to
force or require Konover to cease doing business with any
other person.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Connecticut copies of the attached notice marked “Ap-
pendix.”5 Copies of the notice, on forms provided by the Re-
gional Director for Region 34, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to members are customarily posted. Also, if the
Union publishes a newsletter for its members, this notice

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
should be published therein. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Sign and mail a copy of the notice to Otis Elevator Com-
pany and to Konover Construction Corporation.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO MEMBERS AND EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT engage in, or induce or encourage any individ-
ual employed by Otis Elevator Company to engage in a strike
or a refusal in the course of his or her employment to use,
manufacture, process, transport, or otherwise handle or work on
any goods, articles, materials, or commodities or to perform any
services; or threaten, coerce, or restrain Otis Elevator Com-
pany, where in either case an object thereof is to force or re-
quire Otis Elevator Company to enter into an agreement which
is prohibited by Section 8(e) of the Act.
WE WILL NOT engage in, or induce or encourage any individ-
ual employed by Otis Elevator Company to engage in a strike
or a refusal in the course of his or her employment to use,
manufacture, process, transport, or otherwise handle or work on
any goods, articles, materials, or commodities or to perform
any services; or threaten, coerce, or restrain Otis Elevator
Company, where in either case an object thereof is to force or
requiring Otis Elevator Company to cease doing business with
Konover Construction Corporation or any other person or to
force or require Konover to cease doing business with any other
person.
INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS,
LOCAL 91, AFL–CIO