Heating, Piping and Air Conditioning Contractors New York City Association, Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1953

102 N.L.R.B. 1646 (N.L.R.B. 1953)

1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW 8
1. Local 841, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL, and Lodge 1898, District 38, Inter-
national Association of Machinists, AFL, are labor organizations within the
meaning of Section 2 (5) of the Act.
2. By making a preelection antiunion talk to their respective employees on
company time and property while denying the Union the same privilege, the
Respondents discriminatorily applied their own no-solicitation rule and thereby
engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
s The Respondents submitted "proposed findings and conclusions" numbered 1 to 1:i.
All, except number 9 which is accepted, are rejected on several grounds: (1) Some are
inconsistent with the findings and conclusions made above, (2) some are too broad and
some too limited in scope, and (3) some are unnecessary to the decision as made.
HEATING, PIPING AND AIR CONDITIONING CONTRACTORS NEW YORK
CITY ASSOCIATION, INC., AND DIERKS HEATING CO., INC. and FER-
RO-CO CORPORATION and SHEET METAL WORKERS INTERNATIONAL AS-
SOCIATION, LOCAI. UNION No. 28, PARTY TO TIIE CONTRACT
SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, AND SHEET
METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL UNION No. 28
and FERRO-CO CORPORATION and HEATING, PIPING AND AIR CONDI-
TIONING CONTRACTORS NEW YORK CITY ASSOCIATION, INC., PARTY TO
THE CONTRACT. Cases Nos. 2-CA-2185 and 2-CB-693. February
25, 1953
Decision and Order
On September 24, 1952, Trial Examiner Horace A. Ruckel issued
the Intermediate Report in this proceeding, finding that Respondents
Association, Dierks, and Local 28 had engaged in and were engaging
in certain unfair labor practices, and recommending that each of
them cease and desist therefrom and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached hereto.
The Trial Examiner also found that Respondent International had
not engaged in certain other alleged unfair labor practices and recom-
mended that the complaint be dismissed with respect to such allega-
tion. Thereafter, the Respondents, the charging party, and the Gen-
eral Counsel filed exceptions; the Respondents Association, Interna-
tional, and Local 28, and the General Counsel filed supporting briefs.
102 NLRB No. 167.
HEATING, PIPING AND AIR CONDITIONING CONTRACTORS, ETC. 1647
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions,2 and briefs and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner,
with the following modifications and exceptions :
1. We agree with the Trial Examiner that Respondents Association,
Dierks, and Local 28, respectively, violated Section 8 (a) (1), 8 (a)
(3), 8 (b) (1), and 8 (b) (2) by continuing provisions in their 1950
contract, as implemented by the rules of the joint adjustment board,
which granted illegal preferential hiring rights to members of Local
28. In so holding, we agree that the purported savings clause did
not cure the otherwise illegal provisions,3 and that, in the absence of
evidence of contrary intent,4 the parties must have been presumed to
have intended that such provisions be enforced. Accordingly, we
find no merit to the Respondents' contentions that these findings can-
not be supported in the absence of evidence of specific discriminations.5
2. Like the Trial Examiner, we do not find an additional or an in-
dependent violation of the above sections of the Act, because the con-
tract was interpreted by the joint adjustment board to require mem-
bers of the Heating Contractors Association to have their radiator
enclosures fabricated by companies who hired members of a local
affiliated with the Sheet Metal Workers International Association.
For an employer to refrain, or agree to refrain at a union's request,
from doing business with another employer with whom he has no
current contractual relations or business dealings involves no unlaw-
ful interference, restraint, or coercion as to the employees of the
nonunion firm within the contemplation of Section 8 (a) (1) or 8 (b)
(1) (A). The General Counsel's contention that this conduct was
violative of Section 8 (b) (2) rests on no firmer ground. It is based
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with these cases to a three-member panel
[ Chairman Herzog and Members Styles and Peterson].
2 Respondent Local 28 excepts, without merit, to the Trial Examiner ' s refusal to find that
Ferro-Co Corporation had "no standing to maintain a charge herein insofar as that charge
relates to the rights of the members of the Heating Association ." A charge may be filed
by any person. Board's Rules and Regulations , Series 6, Sec. 102 9.
8 The savings clause reads : "Any provision of this agreement which is contrary to any
valid applicable state or federal law shall not be effective However, the parties believe
the Labor-Management Act of 1947 may be amended so as to validate clauses herein not
now effective but which will automatically then become effective upon passage of addi-
tional legislation.. . This clause lacks the required specificity because it fails to
identify which, if any, clause of the existing contract was to be suspended pending amend-
ment. See Red Star Express Lines of Auburn, Inc. v. N. L. R. B., 196 F. 2d 78 (C. A. 21)4
enforcing 93 NLRB 127; see Hickey Cab Company, 88 NLRB 327.
4 See e g. Monolith Portland Cement Company, et al., 94 NLRB 1358; Port Chester
Electrical Construction Corporation , 97 NLRB 354.
5 See Waterfront Employers of Washington , et al., 101 NLRB 194; N. L. R. B. v.
Gaynor News Co., 147 F. 2d 719 (C. A 2) ; Federal Stores, Division of Spiegel, Inc., 91
NLRB 647, 657.
1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon assumptions entirely too speculative and too remote to sustain
the requisite burden of proof for finding a violation of these sections.
Accordingly while we reject the Trial Examiner's broad rationale
that a direct employer-employee relationship is an indispensible ele-
ment to a finding of a Section 8 (a) (3) violation," we agree with and
adopt his conclusion that the record in this case does not warrant the
finding of such a violation.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
I. Respondent Association, its officers, agents, successors, and as-
signs, shall:
(1) Cease and desist from :
(a) Renewing, enforcing, or implementing the clauses of any
agreement with Respondent Local 28 or any other labor organization
which require employees to join or maintain their membership in
such labor organization as a condition of employment unless such an
agreement has been authorized as provided in the Act.
(b) Encouraging membership in Respondent Local 28 or any other
labor organization of employees by discriminating in any manner in
respect to hire and tenure of employment or any term or condition of
employment.
(c) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist Respondent Local 28,
or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing and to engage in concerted activities
for the purposes of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities, except to the ex-
tent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as au-
thorized in Section 8 (a) (3) of the Act.
(2) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Mail to the Regional Director for the Second Region, signed
copies of the notice attached to the Intermediate Report and marked
"Appendix A,` for posting at the office of Dierks Company, New
s See discussion of the scope of Section 8 (a) (3) In Austin Company, 101 NLRB 1257.
a This notice shall be amended by substituting for the words "The recommendations of
a Trial Examiner," the words "A DECISION AND ORDER ." In the event that this Order is
enforced by a decree of a United States Court of Appeals, the notice shall be further
amended by substituting for the words "Pursuant to a Decision and Order" in the cap-
tion, the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing
an Order."
HEATING, PIPING AND AIR CONDITIONING CONTRACTORS, ETC. 1649
York, New York, in places where notices are customarily posted.
Copies of such notices, to be furnished by the Regional Director for
the Second Region, shall, after being duly signed by Respondent As-
sociation's representative, be forthwith returned to said Regional Di-
rector for such posting.
(b) Mail to each member of the Association a copy of Appendix A
hereto attached with the request that those members having contracts
with Local 28 post such notice immediately upon receipt thereof and
maintain it for sixty (60) consecutive days thereafter in conspicuous
places where notices to its employees are customarily posted and fur-
ther request that said member take reasonable steps to insure that
such notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Second Region, in writ-
ing, within ten (10) days from the date of this Order, what steps it
has taken to comply therewith.
II. Respondent Dierks, its officers, agents, successors, and assigns,
shall :
(1) Cease and desist from :
(a) Renewing, enforcing, or implementing the clauses of any agree-
ment with Respondent Local 28 or any other labor organization which
require its employees to join or maintain their membership in such
labor organization as a condition of employment unless such an agree-
ment has been authorized as provided in the Act.
(b) Encouraging membership in Respondent Local 28 or any other
labor organization of its employees by discriminating in any manner
in respect to their hire and tenure of employment or any term or con-
dition of employment.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the rights to self-organiza-
tion, to form labor organizations, to join or assist Respondent Local
28, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted ac-
tivities for the purposes of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities, except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Post at its office, copies of the notices attached to the Inter-
mediate Report and marked "Appendix A" and "Appendix B." 8
Copies of said notices, to be furnished by the Regional Director for the
Second Region, shall, after being duly signed by Respondent Dierks'
8 See footnote 7, supra.
1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative, and the representative of Respondent Association, re-
spectively, be posted by Respondent Dierks immediately upon receipt
thereof and be maintained by it for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to its
employees are customarily posted. Reasonable steps shall be taken
by Respondent Dierks to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director for the Second Region, in writ-
ing, within ten (10) days from the date of this Order, what steps it
has taken to comply therewith.
III. Respondent Local 28, its officers, agents, successors, and as-
signs, shall :
(1) Cease and desist from :
(a) Renewing, enforcing, or implementing the clauses of any
agreement with Respondent Association, or Respondent Dierks, or
any other employer which require employees to join or maintain their
membership in Respondent Local 28 as a condition of employment
unless such an agreement has been authorized as provided in the Act.
(b) Requiring, instructing, or inducing Respondent Dierks or Re-
spondent Association or any other employer, its officers, agents, suc-
cessors, or assigns, to discriminate against employees because they are
not members in good standing in Respondent Local 28, except in ac-
cordance with Section 8 (a) (3) of the Act.
(c) In any like or related manner, restraining or coercing em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at its offices in New York, New York, copies of the notice
attached to the Intermediate Report and marked "Appendix C." 9
Copies of said notice, to be furnished by the Regional Director for
the Second Region, shall, after being duly signed by Respondent Local
28's representative, be posted by Respondent Local 28, upon receipt
thereof, and be maintained by it for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to its
members are customarily posted. Reasonable steps shall be taken
by Respondent Local 28 to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Mail to the Regional Director for the Second Region signed
copies of the notice attached to the Intermediate Report and marked
"Appendix C," for posting, Respondent Dierks willing, at the New
York office of said Respondent for sixty (60) consecutive days, in
places where notices to employees are customarily posted. Copies of
9 See footnote 7, supra.
HEATING, PIPING AND AIR CONDITIONING CONTRACTORS, ETC. 1651
said notice, to be furnished by the Regional Director for the Second
Region, shall, after being duly signed by a representative of Re-
spondent Local 28, be forthwith returned to the said Regional Di-
rector for such posting.
(c) Notify the Regional Director for the Second Region, in writ-
ing, within ten (10) days from the date of this Order, what steps it
has taken to comply therewith.
IT IS HEREBY ORDERED that the complaint be, and it hereby is, dis-
missed as to Sheet Metal Workers International Association.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a second amended charge filed on December 19, 1951, by Ferro-Co Cor-
poration, herein called the Charging Party or Ferro-Co, the General Counsel
of the National Labor Relations Board, herein called respectively the General
Counsel and the Board, by the Regional Director for the Second Region (New
York, New York), issued a complaint dated December 20, 1951, against Heating,
Piping and Air Conditioning Contractors New York City Association, Inc., herein
called the Asssociation, Dierks Heating Co., herein called Dierks, Sheet Metal
Workers International Asssociation, and Sheet Metal Workers International
Asssociation, Local Union No. 28, herein called Local 28, and collectively called
Respondents, alleging that Respondents had engaged in and were engaging in
certain unfair labor practices affecting commerce within the meaning of Sec-
tion 8 (a) (1) and (3), Section 8 (b) (1) (A) and (2), and Section 2 (6)
(7) of the National Labor Relations Act as amended, 61 Stat. 136, herein called
the Act. Copies of the complaint accompanied by a notice of hearing were
duly served upon Respondents and the Charging Party.
With respect to the unfair labor practices, the complaint alleged in substance
that since August 9, 1950, and prior thereto, the Association acting as agent
for its members, and Local 28, have conducted their labor relations in accord-
ance with an agreement, said to be a renewal of a previous agreement, providing
among other things that Local 28 should have exclusive jurisdiction over the
performance of all sheet-metal work on No. 10 gauge or lighter sheet metal,
and providing that none but sheet-metal workers recognized by the Interna-
tional and Local 28 could perform such work for members of the Association,
granting preferential hiring privileges to members of Local 28, and requiring
all sheet-metal employees of members of said Association, of which Dierks is
one, to comply with the requirements of membership in Local 28 upon being
hired. The renewal agreement of August 9, 1950, is said also to incorporate by
reference certain rules governing a joint adjustment board established under
the agreement which contained certain similar provisions as to union preference.
By these and similar acts, said to be in effectuation of the agreement, the As-
sociation and Dierks are alleged to have interfered with, restrained, and coerced
their employees, and the International and Local 28 have caused and attempted
to cause the Association and Dierks to interfere with, restrain, and coerce their
employees in the exercise of the rights guaranteed by Section 7 of the Act.
Answers filed by Respondents deny the commission of any unfair labor
practices.
By direction of the Regional Director the proceedings in the instant cases
were on December 20, 1951, consolidated for the purpose of hearing with the
1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proceedings in Case No. 2-CC-193, in which Local 28 alone was a respondent
charged with pursuing a secondary boycott via Dierks' employees in violation
of Section 8 (b) (4) (A) of the Act. Pursuant to notice, a hearing was con-
vened before me at New York, New York, on May 6, 1952. On the second day
of the hearing I granted a motion to sever the instant cases from Case No.
2-CC-193. Testimony on the instant cases was subsequently heard on June 3
and 4, 1952. An Intermediate Report and Recommended Order in Case No.
2-CC-193 issues concurrently with this Intermediate Report and Recommended
Order.
At the conclusion of the hearing in the instant cases, the parties waived oral
argument and were granted until June 30 to file briefs with me. Subsequently
the time in which to file briefs was extended by the Chief Trial Examiner.
Timely briefs were filed by Local 28, the International, and the General Counsel.
Upon the entire record in the case and upon my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
A. The Association and Dierks
Heating, Piping and Air Conditioning Contractors New York City Association,
Inc., is a New York corporation with its principal place of business in New York
City. The Association exists for the purpose among others of representing
employers engaged in the business of installing heating, piping, and air-con-
ditioning systems in the New York area. Its function among others is to conduct
labor negotiations and execute labor contracts on behalf of all its members con-
cerning employee members of various unions including Local 28. At all times
material hereto Dierks has been and now is a member of the Association.
During the year 1951, the members of the Association purchased raw materials
and other equipment valued in excess of $1,000,000 which was shipped to said
members from places outside the State of New York. During the same period
the members of this Association performed services and furnished materials
to firms engaged in interstate commerce valued in excess of $500,000. During
the same period the members of the Association shipped products and equipment
valued in excess of $500,000 to points located outside the State of New York.
B. Ferro-Co Corporation
Ferro-Co is a New York corporation with its principal place of business and
plant located in Brooklyn, New York, where it is and has been engaged in the
business of manufacturing sheet-metal products on special order for firms in-
cluding those who are members of the Association. Ferro-Co is not such a mem-
ber. During the year 1951 Ferro-Co purchased raw materials necessary for the
conduct of its business valued at approximately $100,000, approximately 80
percent of which was shipped to its plant in Brooklyn, New York, from points
outside the State of New York. During the same period it performed services
and furnished materials for firms engaged in interstate commerce which were
valued at approximately $500,000, of which approximately $43,000 was shipped
from its plant in Brooklyn, New York, to points located outside the State of
New York.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 28 and the International with which it is affiliated are labor organizations
admitting to membership among others the employees of Dierks and other mem-
HEATING, PIPING AND AIR CONDITIONING CONTRACTORS, ETC. 1653
hers of the Association . The employees of Ferro -Co are represented by Local
259, UAWA, CIO.
III. THE UNFAIR LABOR PRACTICES
The unfair labor practices complained of arise from the execution of an
agreement dated August 9, 1950, to expire in 1953, between the Association and
Local 28, plus the matter in which article 4 thereof was enforced. The pertinent
provisions of this agreement are as follows :
Article I.
Section 1. This Agreement covers the rates of pay, rules and working
conditions of all employees of the Employer engaged in the manufacture,
fabrication, assembly, erection, installation, dismantling, reconditioning,
adjustment, alternation, repairing, and servicing of all sheet and metal
work of No. 10 U. S. or its equivalent or lighter gauge, including all work-
ing drawings or sketches used in fabrication and erection, and all other work
included in the jurisdictional claims of Sheet Metal Workers International
Association.
Article III.
Section 1. The Employer agrees that none but journeymen sheet metal
workers and registered apprentices whose qualifications as such are recog-
nized by the Union, shall be employed on any work described in Article II.
Article IV.
Section 1. The Union agrees to furnish at all times to the Employer duly
qualified journeymen sheet metal workers and registered apprentices in
sufficient numbers as may be necessary to properly execute work contracted
for by the Employer in the manner and under the conditions specified in
this agreement.
Section 2. Whenever, after reasonable notice . . . the Union is unable to
furnish a sufficient number of duly qualified journeymen and sheet metal
workers to meet the necessary requirements of the Employer, then the
Employer may secure from other sources such additional journeymen sheet
metal workers as may be necessary, it being understood that such addi-
tional journeymen sheet metal workers secured from other sources shall
comply with the requirements of membership of the Union.
The contract also incorporates rules I and XIII of a joint adjustment board
created by a previous contract. Rule XIII sets forth the general claim of
jurisdiction of Local 28 over all sheet-metal work of No. 10 U. S. gauge or lighter
metal being performed by employers belonging to the Association in the New
York City area. It contains a statement that "none but journeymen sheet metal
workers and registered apprentices recognized by Local Union No. 28 shall be
employed by the members of the Employers' Association." The General
Counsel contends that the provisions of the agreement when considered in con-
junction with these rules established closed-shop and preferential-hiring condi-
tions, in violation of the Act.
Since the execution of the 1950 agreement took place prior to a date 6 months
before the filing of the charge against Respondents in the instant case, no find-
ing of a violation is urged based upon the mere execution of this agreement. A
finding of violations by the Association, Dierks, and Local 28, as well as by the
International, is requested on the basis of the evidence in the record that the
parties continued and enforced such provisions after a period 6 months before
the filing of the charge.
250983-vol . 102-53-105
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no dispute as to such continuation and enforcement . But Respond-
ents insist that the contract and its enforcement were legal and valid. They
insist, moreover , that a new contract entered into in May 1952, just previous to
the hearing, removed the articles to which the General Counsel objects and is
otherwise in full compliance with the Act. The General Counsel does not con-
tend that the contract as now exists is violative of the Act but insists that its
execution cannot remedy what he contends were the effects of prior and illegal
provisions.
It is clear to me, and I find, that the provisions of the 1950 contract, quoted
above, their undisputed application to the parties to the contract, that is the
members of the Association including Respondent Dierks, and their employees,
and their implementation by the rules of the joint adjustment board, grant prefer-
ential hiring rights to members of Local 28 and are violative of Section 8 (a) (1)
and 8 (b) (1) (A) of the Act.
Respondents contend however that, assuming this, the contract provisions in
question are not violative of Section 8 (a) (3) and 8 (b) (2) of the Act because
there is no showing in the record that any employee of any association member,
including Dierks, was actually discriminated against in regard to his hire or
tenure of employment, or that Local 28 caused or attempted to cause any such
employer so to discriminate. The Board, however, found to the contrary in
Red Star Express Lines,' where in a similar situation it was held that the mere
existence of the provisions of a contract similar to those objected to here was
per se violative of the right guaranteed employees to be free to engage in or
refrain from engaging in collective-bargaining activities, except as permitted by
the proviso contained in Section 8 (a) (3) of the Act. It is true, as Local 28
contends in its brief, that in that case an actual discharge was involved, unlike
the situation here. However, it is clear from a reading of the decision that the
Board held that the violation consisted both of the actual discharge and the mere
existence of the objectionable clauses.
I find that Respondents Association, Dierks, and Local 28, by continuing and
effectuating the objectionable provisions of the 1950 contract within the 6-month
period prior to the filing of the charge, violated Section 8 (a) (3) and 8 (b) (2)
of the Act.
The General Counsel also contends that the same findings should he made as to
the International. With this I disagree The International was not a party to
the contract and did not participate in its negotiation, which occurred, in any
event, more than 6 months before the filing of the charge. Neither did it partici-
pate in the meeting of the joint adjustment board which gave rise to the unlawful
interpretation and application, and which took place during the same period.
The only connection specifically attributed to the International is the fact that
the agreement is entitled "Standard form of Union Agreement" and was furnished
by the International to Local 28. The original furnishing of this form was also
prior to the beginning of the 6-month period. The General Counsel contends,
however, that the continuation of the contract on this form binds the International
because it amounted to a continued furnishing of the form. This seems to me
farfetched. The original furnishing of the form was a completed act. What
was continued was its use by Local 28, and not its furnishing by the International.
The remaining and more controversial issue in the case has to do with certain
activities of Local 28 described in detail in Case No 2-CC-193. Pertinent por-
tions of the testimony in that case were, over objection of Respondents, received
193 NLRB 127, enforced 196 F. 2d 78 (C. A 2). In the same case the Board decided
adversely to the contention of the respondent, made here, that a so-called "saungs clause"
similar to the one here is a defense.
HEATING, PIPING AND AIR CONDITIONING CONTRACTORS, ETC. 1655
in this record. I have found in my Intermediate Report of concurrent date that
these activities did not amount to a secondary boycott in violation of Section
8 (b) (4) (A) of the Act, as alleged in that complaint, because the attempts
of Local 28 to have Dierks cease doing business with Ferro-Co were directed
against Dierks and not against its employees, and were hence permissible.
The General Counsel now insists that this evidence should be considered and
construed here as additional evidence of violation by the parties of Section 8
(a) (3) and (1) and Section 8 (b) (1) (A) and (2). The argument set forth
in the General Counsel's brief runs as follows :
Since Respondent Local 28 initially caused a heating contractor associa-
tion to adopt a discriminatory scheme in 1949 and subsequently . . . reaffirm
and enforce it, it has thereby effectively excluded the employees of Ferro-Co
from work opportunities they would normally have had if the members of the
Association were permitted to continue doing business with Ferro-Co. . . .
The discriminatory arrangement had the actual and intended effect of
interfering with Ferro-Co's freedom of choice in the hiring of its employees
contrary to the policy of the amended Act.
Stated another way, this means, if I understand it correctly, that because of
the continuation and implementation of the contract which I have found to be
violative of the Act because it established discriminatory conditions of work
so far as the employees of the parties to the contract were concerned, secondary
employers, such as Ferro-Co, not parties to the contract, are deprived of an
amount of business which they otherwise might have obtained. Hence Ferro-Co
and other such nonmembers of the Association and nonsigners of the contract
are economically limited in the hiring of new employees, who are thereby
discriminated against.
I am unable to agree with this contention. Section 8 (a) (3) provides in
substance that it is an unfair labor practice for an employer "by discrimination
in regard to hire or tenure of employment or any term or condition of employ-
ment to encourage or discourage membership in any labor organization." Then
follows the proviso that under certain prescribed conditions an employer may
make an agreement with a labor organization to require membership in it as
a condition of employment. Not only the exceptions in favor of the union
shop, but the wording of the section as a whole establish in my mind that
Section 8 (a) (3) is intended to apply to acts committed by an employer in
respect to his own employees Obviously, one employer cannot make a union-
shop agreement respecting the employees of another employer. Nor can one
emplo}er know whether an employee of another employer has been denied
union membership "for reasons other than failure of the employee to tender
dues and ... initiation fees...."
Section 8 (b) (2) provides that it shall be an unfair labor practice for 8
labor organization "to cause or attempt to cause an employer to discriminate
against an employee in violation of subsection (a) (3) or to discriminate against
an employee with respect to whom membership in such organization has been
denied or terminated on some ground other than his failure to tender the
periodic dues and initiation fees. . . ."
This latter section has been consistently viewed as a counterpart to section
8 (a) (3). It prohibits a union from causing or attempting to cause an employer
to violate Section 8 (a) (3). The rationale of the Board has in general been
that a union violates Section 8 (b) (2) when its demand for union-shop or
closed-shop conditions, if granted, would have constituted a violation of Section
8 (a) (3) by the employer.
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That rationale is inapplicable here. Respondent Local 28 has never made
any demand whatever upon Ferro-Co. Nor has it taken any kind of action
against Ferro-Co or against any other such employer, so far as this record
reveals. Nor has it ever sought to organize the employees of Ferro-Co who are
represented by Local 259, UAW-CIO, or approached Ferro-Co on the subject.
The pressure directed against Dierks could not cause Ferro-Co to discriminate
against its employees, and this would be true even had the pressure been directed
against Dierks' employees.
It is my opinion therefore that Section 8 (a) and (b) refer to the employees
of a primary employer. The unfair labor practices proscribed by those sub-
divisions exist where an employer discriminates against his own employees or
prospective employees, or a union coerces or restrains or attempts to coerce or
restrain employees of the employer with whom it has direct dealings. In sub-
division (4) of Section 8 (b) for the first and only time is reference made to
secondary employers and to the employees of secondary employers. The pro-
hibition of this section is against a labor organization from engaging in or
inducing or encouraging the employees of any employer from engaging in a
strike or a concerted refusal in the course of their employment to use or manu-
facture the products of another, where an object is to force or require any
employer to join any labor or employer organization or to deal in the products
of any other producer, etc. This is the so-called secondary boycott section of
the Act which was litigated in the 2-CC-193 case, the issues in which I found
adversely to the General Counsel's contentions.
If the evidence pertaining to activities against secondary employers or their
employees, previously adduced in the CC case, and received in this case, were
to be used in the way in which the General Counsel insists it should be used, in
support of his theory as above outlined, that is if I were to find that it was
violative of Section 8 (b) (2) of the Act for Local 28 to approach Dierks to
persuade it not to handle radiator enclosures manufactured by Ferro-Co, the
result would be effectively to prohibit what has heretofore under the Board's
decisions been held lawful. I find no precedent for such an extension of what
it seems to me is the clear meaning of the Act.
The General Counsel in his brief cites various cases in support of his theory.'
I do not find it necessary to discuss them in detail. The distinguishing feature
of all of them is that the employers therein concerned, whose employees the union
was endeavoring to organize and for whom it sought an invalid union-shop con-
tract, were primary employers, members of an industry all of whom the union
sought to represent. Here, Ferro-Co was a secondary employer whose employees
Local 28 did not seek to represent.
V. THE REMEDY
Since it has been found that Respondents have engaged in and are engaging
in certain unfair labor practices affecting commerce, I will recommend that they
cease and desist therefrom and take certain affirmative action in order to effec-
tuate the policies of the Act.
I have found that Respondents Association and Dierks violated Section 8 (a)
(1) and (3) and that Respondent Local 28 violated Section 8 (b) (1) (A) and
(2) by continuing and implementing the illegal union-security clauses in their
contract. I will therefore recommend that Respondents cease and desist there-
from and from giving effect to those clauses, or similar clauses, and from any
extension or renewal thereof or any effectuation or implementations thereof.
Among others, International Typographical Union, 86 NLRB 951; National Maritime
Union of America, 78 NLRB 971.
HEATING, PIPING AND AIR CONDITIONING CONTRACTORS, ETC. 1657
In addition to notices to be signed by Respondents and posted, I will recom-
mend that Respondent Association and Respondent Local 28 sign appropriate
notices for posting at Respondent Dierks' office and the office of Respondent Local
28 in New York City. Because the master contract between the Association and
Local 28, which covers other members of the Association than Dierks, is in issue,
without jurisdiction being had over such members other than Dierks, I will fur-
ther recommend that the Association send copies of its notice to such other
members and request them to post the same.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, I make the following :
CONCLUSIONS OF LAW
1. Sheet Metal Workers International Association and Sheet Metal Workers
International Association, Local Union No. 28, are labor organizations within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to hire and tenure of employment of employees
of members of the Association, thereby encouraging membership in a labor
organization, Respondent Association has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed them in Section 7 of the Act, Respondent Association has en-
gaged in and is engaging in unfair labor practices within the meaning of Section 8
(a) (1) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, Respondent Dierks has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
5. By causing Respondent Association and its members to discriminate in
regard to hire and tenure of employment in violation of Section 8 (a) (3) of
the Act, Respondent Local 28 has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (b) (2) of the Act.
6. By causing Respondent Dierks to discriminate in regard to hire and tenure
of employment in violation of Section 8 (a) (3) of the Act, Respondent Local 28
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (b) (2) of the Act.
7. By restraining and coercing employees in the exercise of the rights guar-
anteed in Section 7 of the Act, Respondent Local 28 has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the
Act.
The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
Respondent International has not engaged in any unfair labor practices.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT enter into, renew, or enforce the clauses of any agreement
with SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL 28, or any
other labor organization, which require employees to join, or maintain their
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership in, such labor organization as a condition of employment, unless
such agreement has been authorized as provided in the National Labor
Relations Act, as amended.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist SHEET METAL WORKERS INTERNATIONAL
ASSOCIATION, LocAL 28, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as author-
ized in Section 8 (a) (3) of the Act.
All employees of members of this Association are free to become, remain, or
to refrain from becoming or remaining, members in good standing of SHEET
METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL 28, or any other labor
organization except to the extent that this right may be affected by an agreement
in conformity with Section 8 (a) (3) of the Act.
HEATING, PIPING AND AIR CONDITIONING
CONTRACTORS NEW YORK CITY Asso-
CIATION, INC.,
Employer.
By -------------------------------------------
(Representative ) (Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
Appendix B
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National
Labor Relations Board, and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT enter into, renew, or enforce the clauses of any agreement
with SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL 28, or any
other labor organization, which require our employees to join, or maintain
their membership in, such labor organization as a condition of employment,
unless such agreement has been authorized as provided in the National Labor
Relations Act, as amended.
WE WILL NOT encourage membership in SHEET METAL WORKERS INTERNA-
TIONAL ASSOCIATION, LOCAL 28, or in any other labor organization of our
employees by discharging any of our employees or discriminating in any
other manner in respect to their hire or tenure of employment, or any term
or condition of employment.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist SHEET METAL WORKERS INTERNA-
TIONAL ASSOCIATION, LOCAL 28, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage
in concerted activities for the purposes of collective bargaining or other
HEATING, PIPING AND AIR CONDITIONING CONTRACTORS, ETC. 1659
mutual aid or protection , or to refrain from any or all of such activities,
except to the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
All of our employees are free to become, remain , or to refrain from becoming
or remaining, members in good standing of SHEET METAL WORKERS INTERNA-
TIONAL ASSOCIATION , LOCAL 28, or any other organization except to the extent
that this right may be affected by an agreement in conformity with Section
8 (a) (3) of the Act.
DIERKS HEATING CO ., INC.,
Employer.
By -------------------------------
(Representative ) ( Title)
Dated ------------------------------------
This notice must remain posted for 60 days from the date hereof , and must
not be altered , defaced, or covered by any other material.
Appendix C
NOTICE TO ALL MEMBERS
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our members that :
WE WILL NOT enter into, renew , or enforce the clauses of any agreement
with HEATING , PIPING AND AIR CONDITIONING CONTRACTORS NEW YORK CITY
ASSOCIATION, INC., or any other employer , which require employees to join,
or maintain their membership in, this labor organization as a condition of
employment , unless such agreement has been authorized as provided in the
National Labor Relations Act, as amended.
WE WILL NOT require, instruct , or induce HEATING, PIPING AND AIR CONDI-
TIONING CONTRACTORS NEW YORK CITY ASSOCIATION , INC., or any other
employer , its officers , agents, successors , or assigns , to discriminate against
employees because they are not members in good standing in this labor
organization , except in accordance with Section 8 ( a) (3) of the Act.
WE WILL NOT in any like or related manner cause or attempt to cause
HEATING, PIPING AND AIR CONDITIONING CONTRACTORS NEW YORK CITY ASSO-
CIATION, INC., or any other employer , its officers , agents, successors, or
assigns, to discriminate against an employee in violation of Section 8 (a) (3)
of the Act.
WE WILL NOT in any like or related manner restrain or coerce employees
in the exercise of the rights guaranteed in Section 7 of the Act.
SHEET METAL WORKERS INTERNATIONAL
ASSOCIATION , LOCAL 28,
Labor Organization.
By------------------------------------------
(Representative ) (Title)
Dated ------------------------------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.